Witness and Competence and Compellability Flashcards
Q: What is a witness?
Someone who has seen, hears or has some other knowledge of an aspect of a case and who can be called by a party in court proceedings with a view to providing a particular matter material to the case.
Q: What is the law on the attendance of witnesses at court?
This is a last resort- all other avenues must be exhausted.
Prosecution or defence can apply for summons, warrant or order requiring a witness to attend a mag court (s97/97A Mag Courts Act 1980) or crown court (s2 Criminal procedure (attendance of witnesses) Act 1965.
Where appropriate, such an application can be used as a pre-emptive measure to secure the attendance of witnesses.
In DA cases, CPS should carry out a risk assessment concerning the witness before making an application for a witness summons.
Q: What is competence and compellability?
Competence: means the same as capacity. Considers whether a person is capable of giving useful, reliable testimony under the law. Whether there are any restrictions to a witness being called to provide testimony.
Compellability: this is if someone can be compelled/forced to attend court, even if they do not want to. Whether a witness may be compelled or made to provide testimony.
Q: What is the general rule of competence and compellability?
The starting point is that all witnesses are competent and all competent witnesses are compellable, whatever their age.
Q: When is a witness deemed competent?
A witness is competent if he can lawfully be called to give evidence.
Basic principle set out in s53(1) Youth Justice and Criminal Evidence Act 1999 states ‘At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence’.
Q: What are the 2 exceptions to this basic principle that everyone is competent to give evidence?
1: A person is not competent to give evidence in criminal proceedings if it appears to the court that they are unable to understand questions put to them as a witness and give answers to them which can be understood- s53(3)
2: 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- s53(4)
A co-accused can only give evidence for the prosecution once he or she ceases to be a co-accused eg: following a guilty plea.
So, in simple terms…
1: If they lack understanding
2: If they are accused
Q: Who will decide if a witness is competent?
At the trial, a judge or magistrate will decide if a witness is competent.
Before the case gets to trial, the parties may make their own determinations and may choose simply to not use a witness whose competence is doubtful.
Q: What Act sets out the procedure to be followed when determining the competency of a witness?
S54 YJA
The competence of a witness can be raised by a party to the proceedings or by the court of its own motion. The party calling the witness must satisfy the court on the balance of probabilities that the witness is competent. The court must treat the witness as having the benefit of any special measures directions that the court has given or proposes to give.
The determination of competence must be in the absence of the jury.
Expert evidence may be given.
Any questioning of the witness will be conducted by the court in the presence of the parties.
Question of competence should be raised and decided before the trial.
Q: Can a child of any age give evidence?
Yes! If they are 14 or over, they may give evidence on oath. Under that age they must not be sworn.
Child should only be sworn if they understand the solemnity of the act and someone’s liberty is at risk and if they take it, they are agreeing to tell the truth.
If there is any doubt about a witnesses age, then under s150 Mags Court Act, the court may take into account any available evidence and his age may taken to be what it appears to be to the court.
Q: What if a witness has a disorder or disability of the mind?
S55 YJA
Essential that witnesses can be intelligible testimony that can be understood by the court.
Expert evidence may be determined to assist with this.
Barratt 1996- a witness was suffering from a psychiatric condition and the court considered that her evidence was as reliable as that of any other witness save for certain aspects affected by her condition.
Q: What is the law on the accused’s spouse or civil partner giving evidence?
S80 PACE
Spouses or civil partners of either sex of a person charged in proceedings are generally competent to give evidence for the prosecution.
The only exception is if the spouse or civil partner is jointly charged. If they are neither is competent or compellable to give evidence on behalf of the prosecution against the other, unless the spouse or civil partner has already pleaded guilty or the proceedings in respect of the spouse or civil partner have been discontinued.
Spouses and civil partners are both competent and compellable to give evidence on behalf od the defendant or the defendant’s co-accused.
The prosecution can only compel a spouse or civil partner, to give evidence for the prosecution in cases which involve:
- an allegation of an assault on or injury or threat of injury to the spouse or civil partner
- an allegation of an assault on or injury or threat of injury to a person who was at the material time under the age of 16.
- an alleged sexual offence against V who was at the time under 16.
- attempting or conspiring to commit, or of aiding, abetting, counselling, procuring to commit any such offences.
Q: What if a spouse witness is divorced from D at the time of giving evidence?
The spouse is competent and compellable to give evidence, as if they have never been married or civil partners.
S80 PACE does not apply to a partner where they are not married or in a civil partnership. Co-habitees therefore do not enjoy the same protections.
Q: Is there an obligation to tell a wife if she was a compellable witness?
There is no requirement to tell a wife that she was not a compellable witness against her husband before interviewing her about a crime of which her husband was suspected.
L 2008- held a statement obtained from the wife in such circumstances could be admitted in evidence even though the wife refused to give evidence against her husband, provided it did not lead to an injustice.
Prosecutions case can be strengthened if it can be shown that the wife was told their was no obligation on her to give a statement.
Q: When is a witness anonymity order granted?
S86(1) CJA 2009
A witness anonymity order is an order made by a court that requires such specified measures to be taken in relation to a witness in criminal proceedings as the court considers appropriate, to ensure that the identity of the witness is not disclosed in or in connection with the proceedings.
May only be granted on the application of the prosecutor or defendant in 3 conditions (s88):
a) the order is necessary to protect the safety of the witness, or another person, or the prevention of serious damage to property or to prevent real harm to the public interest.
b) having regard to all the circumstances, the taking of these measures would be consistent with the defendant receiving a fair trial; and
c) it is in the interests of justice that the witness ought to testify and the witness would not testify without the order being made, and there would be real harm to the public interest if the witness were to testify without the proposed order being made.
