Witnesses: competence, compellability and other specialities

Question 1

What does competence mean?

Answer 1

Competence[ e.g. mentally competent ] means: can a witness be asked to give evidence at all?

Question 2

What was compellability mean?

Answer 2

Compellability[ This means assuming the witness is competent can they be acquired to give evidence e.g. under threat of a charge of being in contempt of court. in most circumstances a witness who is competent is also compellable. ] means: can a witness be required to give evidence?

⁃ If a witness is compellable he or she must respond to questions asked in court, and if they refuse to do so they will be guilty of contempt of court.

Question 3

Is the accused a competent witness?

Answer 3

The accused was not a competent witness[ The theory was that if an accused could appear at his own trial and was found guilty then he might also be guilty of perjury (some legal systems still retain this idea. ] at his own trial until s 1 of the Criminal Evidence Act 1898 (see now s 266(1)[ says the accused is now a competent witness for the defence at every stage of the trial. ] of the Criminal Procedure (Scotland) Act 1995). He is now competent but can only be called on his own application (s266(2)) not compellable — linked to the right to silence and non incrimination arising from the presumption of innocence) (s 266(11))[ if they are to be called they must be called as the first witness. ] - thus he cannot be compelled to be a witness.
⁃ If the accused is to give evidence then his evidence will be given first for the defence case.

Question 4

What comment can be made on the accused’s failure to give evidence?

Answer 4

⁃ The general position is that the judge can comment on the accused’s failure to give evidence, as can the prosecutor (since s 32 of the Criminal Justice (Scotland) Act 1995), and it has been recognised that a co-accused may do likewise.
⁃ However, the judge and prosecutor should do this only in exceptional circumstances and with restraint.

Question 5

Brown v Macpherson 1918

Answer 5

⁃ In this case the court accepted that it was entirely proper for the judge in a jury trial to remind the jury that the accused did not give evidence in his own defence,and they can infer something from that if they are so minded to do so.

[ So this case represents the old position where the judge had greater scope for making these comments.]

Question 6

*Scott v HM Advocate 1946

Answer 6

⁃ This involved a collision and the driver was charged with attempting to course of justice by convincng two women he had been at their house when the collision happened. He was convicted and appealed against this. One of the appeals was the judge’s comment that the accused failed to give evidence on his behalf: “although a comment on this failure is in my view competent, it should be made with restraint and only when there is certain circumstances which require it…care should be taken that the evidence is not distorted etc.”. However, in this later case the court stressed that the if the judge decides to make these comments he should be restrained in what he says - it was suggested that the judge should only make these comments in special circumstances.
⁃ …although it seems that the co-accused is not restrained in this way, there is authority that says that on the facts they are entitled on the absence of any explanation by the accused to draw an inference of guilt.

Question 7

MacIntosh v HM Advocate (No 2) 1997

Answer 7

— the accused did not appear as a witness and his lawyer said there was a reasonable excuse and cross-examined prosecution saying that they had made up information. Held: they were not allowed to treat this as a separately incriminating piece of information, but the fact the accused had not appeared to give evidence might make it easier for the jury to draw incriminating inferences about the presence of firearms and ammunition in the accused’s house.

Question 8

Shevlin v HM Advocate 2002

Answer 8

In addition to the judge and prosecutor any co-accused of a person can also make comments about the failure of the co-accused to give evidence on his own behalf. In doing this, the co-accused is not subject to the same restrictions as the prosecutor of judge, they had to acknowledge the co-accused’s right to remain silent.

⁃ This case concerned 2 co-accused who were on trial for murder and attempted murder who at trial each blamed the other. The 2nd accused gave evidence in his defence but the first accused did not (stayed silent). The counsel for the 2nd accused made repeated comments about the silence of the 1st accused - saying that both in common sense and the real world silence would be evidence of admitting guilt. Said: “in his silence there is the most admitted guilt that you will ever hear”. The trial judge did not interrupt the counsel’s address to the jury but in the judge’s own speech to the jury he stated that the only inference that could be drawn from the accused’s silence would be that it might make it easier for them to interpret the other evidence as consistent overall with guilty. The first accused was found guilty and appealed.
⁃ The appeal court held that counsel for the co-accused is fully entitled to make comment to the jury on the failure of the other accused to give evidence. The court also held that the trial judges directions to the jury about what inference they could take was correct (see above, underlined).
- So if the co-accused remains silent then the defence is allowed to present this is a way to make her own clients case more favourable, but it should also be made clear that they have a right to say nothing.

Question 9

Who are the co-accused?

Answer 9

If two people are charged with the same or similar offences at the same time they are called co-accused.

Question 10

What is a three-party trial?

Answer 10

The reality is that very often the trial becomes a three party trial.
⁃ The Crown (trying to prove guilt of one or both of the co-accused)
⁃ The co-accused very often blame each other.

Question 11

Is an accused compellable to be witness for another co-accused?

Answer 11

One accused person is competent but not compellable for a co-accused. Alternatively, if the accused gives evidence on his own behalf, then he may be cross-examined on this by the lawyer acting for the co-accused.

Question 12

Criminal Procedure (Scotland) Act 1995 s 266(9).

Answer 12

It is not possible to both call a co-accused as a witness and cross-examine him when he gives evidence on his own behalf.

So the co-accused can consent to giving evidence for their co-accused they may appear for each other as witnesses but only if they consent to doing so (competent but not compellable). But if they consent to giving evidence on their own behalf they cannot be a witness for the other.

Question 13

When can a co-accused become compellable as a witness?

Answer 13

Where a person ceases to be a co-accused (e.g. Pleads guilty, charges are dropped), he becomes a competent and compellable witness for any remaining party still being charged on that indictment: Criminal Procedure (Scotland) Act 1995 s 266(10).

Question 14

HM Advocate v Ferrie 1983

Answer 14

⁃ A number of people were charged and appeared as co-accused. During the trial one of the accused plead guilty to some of the charges against him and the Crown dropped the remaining charges against that particular accused and he was found guilty of the charges he had plead guilty to.
⁃ The Crown then wanted to use that particular accused as a witness against the remaining accused - it was held this was entirely proper because at the time he was asked to be a witness he was no longer accused of anything since the charges against him had been concluded by the guilty verdict and the dropping of other charges. Thus he was both competent and compellable against the remaining accused.
- **This case tells us that the relevant time for deciding whether a witness is competent and compellable will be decided at the time when they are called to give evidence.

Question 15

Who is an accomplice?

Answer 15

Accomplices are two or more people who are accused of acting together in consort and committing some criminal act. They are both alleged to be guilty of the same crime

Question 16

What is an accomplice who gives evidence referred to as?

Answer 16

An accomplice who gives evidence is referred to as a socius criminis (socius)

Question 17

Can a person be an accomplice and not an accused?

Answer 17

A person who is an accomplice but not an accused could be someone who has pleaded guilty or
someone who is not appearing in the same proceedings as the accused.

Question 18

What privilege do competent yet compellable co-accused’s enjoy?

Answer 18

NB competent and compellable co-accused’s enjoy the privilege against self-incrimination - they cannot be required to answer questions that might incriminate them; however if the sauces would be required to incriminate himself by giving evidence it is possible that he or she would be granted immunity from answering questions from the Crown. But this immunity must be agreed upon by the prosecutor, it doesn’t automatically arise. For it to arise, the person called must have been treated as a socius.

Question 19

Can an accused be convicted on the evidence of socii alone?

Answer 19

Yes. See Dow v MacKnight 1949

Question 20

Dow v MacKnight 1949

Answer 20

⁃ Man charged with reset of cigarettes. The evidence against him came from another man who had been involved in the theft of the goods and the evidence of that man was the only evidence of guilty of the remaining accused. Nonetheless the court held that no corroboration was required. [GM thinks this is a ‘remarkable’ rule - in a bad way!]
- The uncorroborated evidence of the socius was sufficient to warrant conviction.

Question 21

What is a “cum nota”?

Answer 21

It used to be thought that because of the dangers of accomplice evidence the jury should be given a warning, a special notice, of the dangers of this evidence, known as a “cum nota”. However this warning is no longer required following the case of Docherty v HM Advocate 1987 – and might even be inappropriate in some cases: Casey v HM Advocate 1993 SLT 33 [look this case up]** (25 mins - 30 mins in) [someone being tried at the same time. If someone wants to be immune from prosecution they have to say that they are regarded as a socius]

Question 22

Casey v HM Advocate 1993 SLT 33

Answer 22

??

Question 23

*Docherty v HM Advocate 1987

Answer 23

The accused had appeared on trial for robbery and acted with other individuals who had earlier made evidence. these persons who had pled guilty already had been called as prosecution witnesses. Although there was independent evidence…

Question 24

What happens where the Crown calls a socius as a witness?

Answer 24

Where the Crown calls a socius as a witness, they acquire immunity from prosecution for this crime (sometimes known as Queen’s evidence)

But a Crown witness who admits to criminal activity during the course of his testimony is not protected in this way.

Question 25

Macmillan v Murray 1920.

Answer 25

⁃ A person who was an alleged accomplice was brought in by the Crown as a witness in the trial of the other accused. This accomplice refused to give evidence at the trial of the other party but the court held that since the accomplice had acquired immunity from prosecution he was compelled to answer questions against the remaining accused.

Question 26

O’Neill v Wilson 1983

Answer 26

[ Look this up - little confused as to how A gets immunity - he’s not a socius criminis since he isn’t an accomplice… Maybe a socius criminis doesn’t have to be an accomplice??]

⁃ A police officer (A) pursued a man (B) to his home and there then followed violent incident between the police officer, the other man (B) and someone else staying at the man’s home (C). B and C were charged with assaulting A. A gave evidence for the Crown at the trial against B and C.
⁃ However, A was not believed and B and C were acquitted. Then A was charged with assaulting B and C. A’s argument was that by giving evidence against B and C at their trial he had acquired immunity from prosecution. However, the court held that he had not acquired immunity because there were two different crimes here (B and C were charged with assaulting A, but now A was charged with assaulting B and C - a separate crime). Thus A had not acquired immunity.
- Here there was a police officer who pursued an individual to a house but there was a violent incident. A and B (involved in incident with police officer) were tried with assaulting the police officer. During this trial the police officer was called as a witness by the prosecution and he gave evidence by the two parties. The police office was then charged himself with having assaulted the two individuals. During the course of the trial the police officer objected and this was taken as to the competency of these proceedings against him. He claimed that as he had given evidence agains the prosecution he should be immune for any crime he committed in the same incident.
- Case authority: immunity for prosecution applies only to a person expressly called a socius in the crime. Here he was not referred to as this so this prosecution immunity didn’t apply to him.
- The immunity from prosecution covers only the charges contained in the libel (can be another reason why the potential immunity from prosecution did not apply here).

Question 27

Can evidence be led by the co-accused witnesses against another co-accused?

Answer 27

The evidence of witnesses led for one accused is evidence against a co-accused whether it is elicited in chief, or in cross-examination by the Crown or another co-accused. So where evidence is given for one accused it can be considered evidence as against another co-accused.

Question 28

*Todd v HM Advocate 1984

Answer 28

⁃ Three accused were charged on indictment with robbery, and they remained separate offences. One of the accused led as a witness his cohabitee. In her evidence she incriminated the co-accused. She wasn’t actually called by her own co-accused by she was cross examined by the counsel of that co-accused and then she was cross examined by the Crown and then gave further evidence which incriminated the co-accused. It was argued on behalf of the co-accusd that her evidence should only he restricted to what she had said about the person who called her. However, the court held that the evidence counts against all of the accused.

• In her evidence in chief she ended up incriminating one of the other co-accused (when giving evidence for her cohabitee). She was cross-examined on this evidence on behalf of the co-accused.
• She was then cross-examined by the prosecutor who drew out more incriminating evidence by the co-accused and because of this the co-accused was allowed to cross-examine her further.
• The co-accused was convicted and he appealed on the basis that evidence given by a witness on behalf of one accused could not be used against the other co-accused.
• The AC said: if it had ever been a rule it no longer was one.
• NB if a witness is called by one accused in a trial, which involves more than one accused, if in giving that evidence they incriminate any of the other co-accused that evidence is regarded as evidence that goes against the co-accused. There is no special rule saying that it cannot be used.

Question 29

What was the law on calling the spouse or civil partner of a co-accused prior to 2011?

Answer 29

Until 28 March 2011, the spouse of an accused was competent (without the consent of the accused) but not normally compellable: Criminal Procedure (Scotland) Act 1995 s 264(1). But at common law (and preserved by s 264(2)(a)) of the 1995 Act), the spouse would be compellable if they were the alleged victim of the offence: see e.g. Foster v HM Advocate 1932 JC 75.

NB there is a privilege against disclosing marital communications.

A spouse who agreed to give evidence could not be compelled to disclose a marital communication: s 264(2)(b) of the 1995 Act.

A similar rule applied to civil partners (Civil Partnership Act 2004 s 130) but not to cohabitees (Casey v HM Advocate 1993 SLT 33).

However note that if they were the alleged victim of the offence they were compellable.

All of this has been swept away by the new law below!!! (So don’t worry about it too much!)

Question 30

What is the new law on calling the spouse or civil partner of a co-accused since 2011?

Answer 30

Section 86 of the Criminal Justice and Licensing (Scotland) Act 2010, which came into force on the 28th March 2011 essentially abolishes the restriction on the spouse/civil partner of the accused giving evidence - they are now competent and compellable. However, if the spouse/civil partner is a co-accused with her husband/partner then they are each treated as an accused person (and accused persons are not generally compellable witnesses (see above)).

Question 31

Section 86 of the Criminal Justice and Licensing (Scotland) Act 2010

Answer 31

⁃ “Spouse or civil partner of accused a compellable witness
⁃ (1) For section 264 of the 1995 Act (spouse of accused a competent witness) substitute–
⁃ “264 Spouse or civil partner of accused a compellable witness
⁃ (1) The spouse or civil partner of an accused is a competent and compellable witness for the prosecution, the accused or any co-accused in the proceedings against the accused.
⁃ (2) Subsection (1) is, if the spouse or civil partner is a co-accused in the proceedings, subject to any enactment or rule of law by virtue of which an accused need not (by reason of being an accused) give evidence in the proceedings.
⁃ (3) Subsection (1) displaces any other rule of law that would (but for that subsection) prevent or restrict, by reference to the relationship, the giving of evidence by the spouse or civil partner of an accused.
⁃ (2) Section 130 of the Civil Partnership Act 2004 (c.33) (civil partner of accused a competent witness) is repealed.”

Question 32

Can judges appear as witnesses?

Answer 32

At a trial in court a crime could be committed (the obvious example is perjury).

It appears that Court of Session / High Court judges are not competent to give evidence of proceedings taken before them. Judges in inferior courts are, however, competent:
⁃ Davidson v McFadyen 1942.

Question 33

Davidson v McFadyen 1942

Answer 33

This was a trial for perjury. The sheriff and the sheriff clerk who had been involved in the original trial where it was alleged perjury had been committed were admitted as witnesses in the perjury trial.

Question 34

Are prosecutors and other lawyers competent witnesses?

Answer 34

Prosecutors are competent witnesses, in relation to occurrences at a previous trial, although not in the trial they are currently conducting.

Question 35

Mackintosh v Wooster 1919

Answer 35

There was a trial alleging breach of customs and excise law. The original complaint was signed by a customs and excise officer but the trial itself was prosecuted by a different customs and excise officer. The question was whether the prosecutor who had signed the original complaint give evidence at the trial. It was held that he could.[ Perhaps doesn’t illustrate the principle that well…?]

Question 36

Can defence agents give evidence in cases they are conducting?

Answer 36

Defence agents can (it has been said) give evidence in cases they are conducting (i.e. in the present case where the defence agent is representing the accused they can also give evidence)

Question 37

Campbell v Cochrane 1928

Answer 37

⁃ This case concerned a prosecution under the licensing law that in a certain bar alcohol was served outwith the permitted hours. Part of the defence was that the licence holder had taken proper precautions to prevent this happening. The defence agent at the trial himself gave evidence that he was aware as a legal advisor the steps that the accused had take to minimise the risk of illegal sales of alcohol taking place.
⁃ [So it was clear that the defence agent was competent to speak to matters relevant to the trial - but one of the effects must be that in these circumstances the client must have waived lawyer-client privilege.]
- The accused’s lawyer was in the hotel at the time that the alleged offence took place (on other business). The lawyer heard the accused person telling the bar staff that the bar should remain closed until 5pm. The proprietors wanted to call on the defence lawyer to say that she had said this.

Question 38

Can jurors give evidence of their deliberations or the trial itself?

Answer 38

Jurors cannot give evidence of their deliberations, as these are secret (Contempt of Court Act 1981 s 8[ It is considered to be in contempt of court to obtain disclose etc any information gathered in the jury room.]) but should otherwise be competent witnesses (for anything which took place at the trial).

They cannot testify to matters which happen in the jury room, there is a protection of the jury deliberation process. They are incompetent as witnesses to that information.

Question 39

What is the privilege against self-incrimination?

Answer 39

“It is a sacred and inviolable principle of the criminal jurisprudence of Scotland, that no man is bound to criminate himself.” Livingstone v Murrays (1830) 9 S 161 at 162 per Lord Gillies

So a witness in civil or criminal proceedings can refuse to answer a question if a true answer may lead to his conviction for a crime or involves an admission of adultery (see Evidence Further Amendment (Scotland) Act 1874 s 2 for the privilege in respect of adultery). During a trial a judge should intervene if he thinks that a line of questioning may involve a witness admitting guilt to a crime.

Question 40

Once the privilege has been waived, can you use it to avoid answering questions of detail?

Answer 40

No - Greenan v HM Adv 2006 SCCR 659.

There is no privilege if answering a question would involve the admission of civil liability.

Question 41

Does the privilege apply to criminality outwith Scotland?

Answer 41

Yes:

HM Advocate v Entwhistle (1980)
⁃ If the witness answered the question he could have been admitting committing a crime under English law but not a crime under Scots law. It was held that the privilege against self-incrimination applied in these circumstances.

Rio Tinto Zinc v Westinghouse [1978]
⁃ Civil case between two corporations one of whom alleged a breach of contract. One party said that there had been problems arising from obtaining the necessary material because of the activities of Rio Tinto Zinc since they had been acting in breach of EC competition law. The point was that if Rio Tinto were in breach of EC competition law then they were liable not just for civil damages but also to penalties. Rio Tinto claimed privilege and refused to disclose documents on the basis that if they did they could be incriminating themselves in respect of this breach.
⁃ It was held that this was a proper basis for applying the privilege against self-incrimination.