Witnesses

Question 1

Witneses

Answer 1

Anybody who is gonna be called to give live evidence at trial

Generally witnesses are expected to give oral evidence under oath (sworn evidence) in court.

Witnesses will be examined in chief by the party who called them (examined by their own side) and cross examined by the opposing sides –> (being asked questions by the prosecution or defence)

“Special measures” are available to assist “vulnerable” witnesses (Youth Justice & Criminal Evidence Act 1999)

Hearsay becomes relevant where a witness is unable to testify or it is necessary to adduce a witnesses out of court statement.

Question 2

Competence and Compellability - 1

Answer 2

Competent—the witness may give evidence

Compellable—the witness may be required/compelled to give evidence

S.53(1) Youth Justice & Criminal Evidence Act 1999 –> general rule = all people are competent (SUBJECT TO EXCEPTIONS)

General rule = all competent witnesses are also all compellable (SUBJECT TO EXCEPTIONS)

Question 3

Competence & Compellability - 2 (EXCEPTIONS)

Answer 3

Exceptions to competence include:

S.53(4) YJ & CE Act 1999 - The accused is not a competent prosecution witness (would never give evidence against them)

The accused is not a compellable defence witness (can’t be forced to give evidence for the defence e.g. able to remain silent)

The accused’s spouse can’t be compelled to testify against the accused unless it is a “specified offence” (s.80(3) PACE 1984)

Question 4

Test of competence in criminal proceedings - S.53 YJ & CE Act 1999

Answer 4

S.53(3) YJ & CE Act 1999 will be applied where competence is in question (e.g. due to age, intellectual ability etc.)

A person who cannot understand questions put to him as a witness or whose answers cannot be understood is not competent.

R v Sed 2004 - Does not require 100% understanding

Question 5

Determining whether witness can understand questions/give answers that can be understood (s.54 YJ & CEA 1999)

Answer 5

Not necessary to test all witnesses but where issue of competence arises (e.g. young child or low cognitive ability):

1) The party calling witness must prove on the balance of probabilities that witness is competent;

2) if necessary to question the witness, the witness will be questioned by the judge

Question 6

Sworn and unsworn evidence

Answer 6

Normally witness will be sworn (oath or affirmation)

s.55 YJ & CE Act 1999 - If witness is under the age of 14 they cannot be sworn to give evidence

Witness will not give sworn evidence if they do not sufficiently appreciate the solemnity of occasion and the particular responsibility of telling the truth which taking the oath involves HOWEVER they can give unsworn evidence

If witness is competent (i.e. passes s.53 test) but cannot take the oath then witness gives unsworn evidence (s.56)

Question 7

Special Measures, (s.16 & 17 YJCEA 1999) - 1

Answer 7

Designed to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses.

s.16 YJCEA 1999 - For witnesses who are eligible on the grounds of age or incapacity i.e. vulnerable witnesses
> Under 18 years of age’
> Mentally or physically vulnerable,

s.17 YJCEA 1999 - Eligible on the grounds of fear or distress about testifying i.e. intimidated witnesses

Question 8

Special Measure - 2

Answer 8

SPECIAL MEASURES INCLUDE:
1) Screens (s.23)
2) live link (s.24)
3) evidence given in private (s.25)
4) removal of wigs and gowns (s.26)
5) recorded evidence (s.27 & 28)

MUST APPLY PRE-TRIAL – available to both prosecution and defence witnesses – not usually to the defendant

S.32 YJCEA 1999 - Warning to the jury where special measures are used

Question 9

Examination of witnesses - 3 Stages

Answer 9

1) Examination in chief (by party calling the witness)

2) Cross-examination (by other party/parties)

3) Re-examination (by party who called the witness)

Question 10

Examination in Chief - 1 (leading questions & memory refreshing)

Answer 10

LEADING QUESTIONS = a question which either suggests the desired answer or suggests the existence of facts of which the witness has not testified –> not usually supposed to be asked but judge may permit them

MEMORY REFRESHING - before going in witness box, the witness will be able to refresh his mind with the prepare statement they made when reasonably close to the events (R v Richardson and IN THE WITNESS BOX, he may refresh his memory with prepared statement (S.139 CJA 2003)

Question 11

Examination in Chief - 2 (unfavourable & hostile witnesses)

Answer 11

UNFAVOURABLE WITNESSES = Where a witness is not deliberately hostile to the party calling him but is just a poor witness, evidence of the witness’ bad character cannot be adduced to discredit him (s.3 CPA 1865) SO the opposing party can’t attack the witnesses’ credibility unless witness is actually hostile (Clarke v Saffery 1824)

HOSTILE WITNESS = a witness is one who does not want to tell the truth on behalf of the party who called him and IF LEAVE OF COURT is given the opposing party may cross examine and ask leading questions & putting his previous inconsistent statements to him (Thompson

Question 12

Cross Examination

Answer 12

This is examination of a witness by/on behalf of a party other than the party who called him

Thus, a prosecution witness is cross-examined by the defence and a defence witness is cross-examined by prosecution

Leading questions may be asked

May cross-examine to undermine the witness’ evidence, AND to adduce favourable evidence from the witness or to discredit the witness

Question 13

Re-examination

Answer 13

Conducted by/on behalf of party who called witness (i.e. prosecution witnesses are re-examined prosecution and defence witnesses are re-examined by defence)

(Bottomley) - Leading questions should not be asked

Memory refreshing may take place

Witness may be treated as hostile with leave

Re-examination should only relate to matters raised during cross-examination (Queen Caroline’s Case)