Witnesses Flashcards
What are special measures?
The arrangements put in place to assist witnesses in giving evidence before a court.
Purpose is to allow children, vulnerable and those in fear or distress about testifying - to testify in an environment that best enables them to give their evidence e.g. using a screen.
Types of special measures
- Use of screens
- Live TV link
- Giving evidence in private
- Removing wigs and gowns by barristers and judges
- Video recording of evidence in chief
- Pre-recording cross examination and re-examination
Not available to witnesses eligible due to being put in fear:
- Questioning of a witness through and intermediary
- Aids to communication
Who is eligible for special measures?
- All witnesses under 18 at the time of the trial
- Witnesses who have a mental disorder or significant impairment of intelligence and social functioning, or a physical disability/disorder, where the court considers that due to any such matter the quality of their evidence is likely to be diminished
- Witnesses who are in fear or distress about giving evidence and the court is satisfied that the quality of their evidence will be diminished because of this
- All adult complainants of sexual offences
- All adult complainants in certain offences under the Modern Slavery Act
- All witnesses in a case involving a ‘relevant offence’, namely serious offences including homicide or firearms or knives
Other measures to protect witnesses
- Witness anonymity orders
- automatic anonymity of complaints in sex cases
- Prohibition of cross-examination by defendants in person of complainants in sex cases and of child witnesses in certain cases involving violent and sexual offences
- Restricting the reporting of witnesses’ identity
Application for a live link
Live link:
Court must be satisfied it is in the interests of justice and a live link would improve the quality of accused’s evidence because either:
- the accused is under 18 and the accused’s ability to participate effectively as a witness giving oral evidence is compromised by their level of intellectual ability or social functioning
- the accused is 18 or over and the accused is unable to participate effectively as a witness giving oral evidence because the accused has a mental disorder or a ‘significant impairment of intelligence and social function’
Vulnerable defendant - intermediary
Only defendants with comprehension or communication difficulties will be entitled to an intermediary.
In practice, witnesses are questioned directly and the intermediary will only step in if there is some kind of miscommunication.
Test for witness summons
(1) The witness is likely to be able to give evidence (or produce a material document); and
(2) it is in the interests of justice to issue a summons
If witness does not attend without an ‘just excuse’ then the courts can issue a warrant for the arrest of the witness.
It is also punishable as a contempt of court.
Four preliminary issues relating to witnesses
- Competence
- Compellability
- Expert evidence
- Privilege
What is competence?
Means whether the witness is permitted to give evidence in court.
Most people are, only a few exceptions to competence:
Defendant/accused: not competent to be a prosecution witness. Where multiple defendants none can be prosecution witnesses for the other
Children and persons with a disorder or disability, must ask:
- can the child understand the questions?
- can the child give comprehensible answers?
Spouse/civil partner: competent for any party
Deaf or speech impaired: witnesses are competent so long as they understand the solemnity of taking the oath or affirmation.
What is compellability?
Some witnesses cannot be compelled to give evidence.
Defendant: not competent for prosecution so cannot be compelled. Can give evidence for the defence but not compellable.
Children and persons with disorder or disability: if competent can be compelled
Spouses: can be compelled for defence. Only compellable by prosecution if offence charged against partner is: assault, injury or threat of injury to that spouse or partner or someone under 16, sexual offence against someone under 16, attempts, conspiring, aiding and abetting any of the above
Witness of fact
Witnesses should generally be witnesses of fact.
Courts will only receive opinions of witnesses if:
- opinion is given in relation to commonplace occurrences about which the witness’s perception appears relevant and proper
- witness is an expert
Opinion evidence
Admissible perceptions by non-experts:
- drunkenness
- give factual evidence: slurred speech, pupils dilated, walking unsteadily
- but in reality they will just say the witness was drunk
Recognition of handwriting, voice, defendant was young etc are all opinions but are acceptable
Expert evidence
Technical matters of science, medicine, psychology.
Law may specify what level of expertise would be required before the court would receive the opinion e.g. doctor rather than nurse
Experts are treated more as independent consultants rather than partisan witnesses. Asked to consider their role as being neutral and objective
Juries are not obliged to accept the experts opinion as fact even if not contradicted. BUT may be directed to accept it as correct where the expert’s opinion and all other evidence leads inevitably to only one conclusion
Where multiple experts who disagree - they should be asked to meet and narrow down issues between them and explain basis of disagreement
Privilege
- Against self-incrimination
- Legal professional privilege
+ litigation privilege (purpose is to advance or act in a process of litigation)
+ advice privilege (obtain advice more generally)
Third parties and privilege
If third-party communication is generated during or in contemplation of litigation then privilege is likely to attract but is no litigation involved then documents supplied to a lawyer from a third party for more general advice is usually not protected by privilege
Waiver of privilege
Can be waived explicitly or by conduct.
Cannot waive privilege partially.
Only the person entitled to claim privilege can waive it - right to waive privilege is the right of the client rather than the law firm.
Oaths and affirmations
All witnesses must take an oath or make an affirmation.
Exception: children and those of ‘unsound mind’
Test: whether they 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
Refusal to take oath or affirmation can be punishable as a contempt of court
Examination in chief: questioning
Questions should be non-leading.
Evidence from a leading questions may be considered to be inadmissible or carry less weight.
Exceptions: leading may be allowed on issues that are not in dispute or where the witness has been deemed hostile.
Examination in chief: Memory refreshing
3 ways an out of court written witness statement may be used in court:
1. Statement may be read out id the contents are agreed.
2. Witness can ask to refresh memory from witness statement - generally uncontroversial but should:
- allow witness to read and then ask questions (not read out from statement)
3. In cross-examination on a previous inconsistent statement
What is a hostile witness?
- initially says they will assist and then indicate they will not (common in dv cases)
- can apply to judge to treat witness as hostile
- then they can cross examine the witness and put their previous statement to them as the truth of the matter
Evidence of earlier consistent statements
Courts do not usually hear evidence of consistent statements - because repeating something does not make it more reliable.
Main exceptions:
- res gestae (e.g. 999 call)
- suspect’s response to a police allegation
- complaints (principle that the faster someone complains of a principle the more likely it is to be reliable)
- recent fabrication: if accused of recently making something up then the witness is permitted to prove this is not the case.
Cross-examination
May ask leading questions.
Principle that states that unless a witness’s account is challenged on a particular point it is deemed to have been tacitly accepted.
Previous inconsistent statements
Previous witness statements become admissible if witness giving live evidence departs materially from the statement either by contradicting the statement or adding something to it which was not there originally.
Note: questions about the victim’s general promiscuity or other sexual behaviour is not allowed in the court and upsetting a witness should never be done for its own sake.
Re-examination
If any matters are raised in cross examination which could not reasonably have been covered in examination in chief, then the party calling the witness may ask further questions after the cross-examination in re-examination.
Finality on collateral matters
The general principle that a party cannot call evidence to try to prove a peripheral matter, such as the credibility of something a witness said on a less crucial issue
