Witnesses - Preliminary issues and opinion evidence (W8)

Question 1

F4.1 - Meaning of competence and compellability

Answer 1

Competence = witness is competent if the witness may lawfully be called to testify

Compellability = witness is compellable if, being competent, the witness may lawfully be compelled by the court to testify.

Question 2

F4.2 - General rule as to competence

Answer 2

General rule: all persons are, whatever their age, competent to give evidence (YJCEA, s.53(1))

Two exceptions:

(1) A person is not competent if the person is unable to understand questions put to him/her as a witness and to give answers to them which can be understood (s.53(3)). The types of witnesses who may be incompetent under this test are children and persons with a disorder/disability of the mind.
(2) An accused is not competent to give evidence for the prosecution (s.53(4))

Question 3

F4.3 - General rule as to compellability

Answer 3

General rule: all competent witnesses are compellable.

Four categories of exception:

(1) The accused is not a compellable witness for the defence, i.e. for themselves or a co-accused
(2) An accused’s spouse or civil partner is, in the case of all but a number of specified offences, not compellable for either the prosecution or the co-accused
(3) applies in the case of the Sovereign, heads of other sovereign states and diplomats
(4) relates to bankers

Question 4

F4.8 - The accused as a witness for the prosecution

Answer 4

• An accused is not competent as a witness for the prosecution (s.5(4) YJCEA 1999)
• A co-accused may only give evidence for the prosecution if he/she ceases to be a co-accused ‘whether as a result of pleading guilty or for any other reason’
• ‘Other reasons’ are that a co-accused has been acquitted or is to be tried separately or that the A-G has entered a nolle prosequi.

Question 5

F4.10 - The accused as a witness on one’s own behalf

Answer 5

• The accused is a competent witness for the defence (YJCEA 1999, s.53(1))
• They can give evidence not only in the trial itself, but also after conviction, in mitigation of sentence.
• There is some old authority to the effect that the accused is not entitled as of right to give evidence on the voir dire but that the court may in its discretion allow the accused to give evidence at this stage if in the interests of justice
• However, wording of s.53(1) supports the practice of the accused electing whether to give evidence on the voir dire.
• The accused is not a compellable witness for the defence.

Question 6

F4.14 - spouse/civil partner of the accused as a witness (s.53(1) YJCEA 1999 and PACE 1984 s.80)

Answer 6

s. 80 PACE 1984:
- In any proceedings the spouse or civil partner of a person charged…shall be compellable to give evidence on behalf of that person.
- In any proceedings the spouse or civil partner of a person charged…shall be compellable: (a) to give evidence on behalf of any other person charged in the proceedings but only in respect of any specified offence with which that other person is charged; (b) to give evidence for the prosecution but only in respect of any specified offence with which any person is charged.
- An offence is a specified offence if: (a) it involves assault on, or injury/threat of injury to, the spouse or civil partner or a person who was at the material time under the age of 16, (b) it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age, or (c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of an offence falling within (a) or (b).
- No person who is charged in any proceedings can be compellable due to the above.
- A person who has been but is no longer married to the accused shall be compellable to give evidence as if the person and the accused had never been married. Same applies for civil partnership.

Question 7

F4.15 - spouse/civil partner of the accused as a witness for the prosecution

Answer 7

• Competent to give evidence for the prosecution (YJCEA s.53(1)) unless also a person charged in the proceedings
• Compellable to give evidence for the prosecution but only in respect of a specified offence
• Reference to spouse or civil partner refers to persons whose marriage or civil partnership would be recognised by English law

Question 8

F4.21 - The test for competence

Answer 8

• governed by the YJCEA 1999 ss.53-56
• A person is not competent if it appears to the court that the person is not able to (a) understand questions put to him/her as a witness and (b) give answers to them which can be understood.
• An infant who can only communicate in baby language with its mother will not ordinarily be competent, but a child who can speak and understand basic English with strangers will be competent.
• There is no requirement that the witness be aware of his/her status as a witness and questions of credibility and reliability are not relevant to competence but go to the weight of the evidence.
• A person who has no recollection of an event may be a competent witness.

Question 9

F4.21 - Propositions from Barker as to competence

Answer 9

(a) Question under s.53 is whether the individual witness is competent to give evidence in the particular trial, i.e. witness specific
(b) No presumptions or preconceptions
(c) Witness does not need to understand the special importance of telling the truth and does not need to understand every question or give an understandable answer to every question.
(d) Witness should be able to understand questions from the defence as well as the prosecution
(e) s.53 is not the exercise of a discretion but the making of a judgment on whether a witness fulfils the statutory criteria.

Question 10

F4.26 - Sworn evidence

Answer 10

• Whether a child or person of unsound mind may be sworn for giving evidence on oath is governed by s.55 YJCEA 1999
• A witness may not be sworn for this purpose unless they have reached the age of 14 and have ‘a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth’ (s.55(2))
• If the witness is able to give intelligible testimony, the witness is assumed to have sufficient appreciation of those matters unless any party adduces evidence tending to show the contrary (s.55(3))
• If any evidence to the contrary is adduced, it is for the party seeking to have the witness sworn to satisfy the court on the balance of probabilities that the witness is 14+ and has a sufficient appreciation (s.55(4))
• Any proceedings on this matter must take place in the absence of the jury
• Expert evidence may be received on the question and any questioning of the witness shall be conducted in the presence of the parties.

Question 11

F4.31 - Oaths and affirmations: general rule and exceptions

Answer 11

• Unless legislation otherwise provides, before giving evidence a witness must take an oath or affirm
• The evidence of a person who is competent to give evidence but not permitted to be sworn shall be given unsworn and at common law, a person called merely for the purpose of producing a document need not be sworn
• However, if the identity of the document is disputed and must be established, this is done by sworn evidence.
• Where a video recording of an interview with a child is permitted under s.27 YJCEA 1999, and the child is 14 or over, the oath should be administered before the start of the cross-exam
• A conviction cannot be taken to be unsafe on appeal for the reason that a witness who was unsworn should have been sworn.

Question 12

D21.26 - Witness summonses

Answer 12

The attendance of witnesses for purposes of criminal proceedings in magistrates’ courts may be secured by the issue of a summons or warrant under the MCA 1980, s.97. Where a magistrate is satisfied that:
(a) any person within the jurisdiction is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, for purposes of a summary trial, and
(b) it is in the interests of justice to issue a summons to secure the attendance of that person to give evidence or produce the document or thing,
the magistrate may issue a summons requiring the person to attend before the court on the date specified in the summons. A similar power is given to justices’ clerks.
- If a magistrate (but not a clerk) is satisfied by evidence on oath that it is probable that a summons issued under s.97(1) would not procure the witness’ attendance, they may issue an arrest warrant instead (s.97(2))

Question 13

D21.27 - If a witness summonsed fails to attend

Answer 13

The court may issue an arrest warrant (s.97(3)). It must be satisfied that:

(a) the witness is likely to be able to give material evidence or produce a material document or thing;
(b) the witness has been duly served with the summons and been paid or tendered a reasonable sum for costs and expenses; and
(c) there is no just excuse for the failure to attend.
- Requirement (a) must be established by evidence on oath; requirement (b) may be established either by evidence on oath or in such other manner as is prescribed.

Question 14

D21.27/CrimPR Part 4 - How a witness summons may be served

Answer 14

(a) by handing it to the individual
(b) by leaving it at, or sending it by first class post to, an address where it is reasonable to believe that the individual will receive it.

The Criminal Procedure (Attendance of Witness Act 1965) s.3 provides that a person who, without just excuse, disobeys a witness summons is guilty of contempt of court, and this applies to magistrates’ courts and Crown Court

Question 15

D15.91 - Securing the attendance of witnesses (trial on indictment)

Answer 15

In most cases, it is the responsibility of the police to secure the attendance of prosecution witnesses, and that of the defence solicitor to ensure the defence witnesses attend. Steps taken will depend on the sensitivity of the witness and whether there is a fixed date for trial, or whether the case is in a warned list in which case an accused would need to keep in daily contact with his solicitors during the period in which his case might be called.

Question 16

D15.92 - Compelling attendance (trial on indictment)

Answer 16

Where prosecution or defence wish to secure the attendance of a witness but are not satisfied that the witness will attend voluntarily, they can apply for a witness summons. The same procedure can be used to secure the production of documents.

Question 17

D15.93 - Punishment for witness failure to attend (trial on indictment)

Answer 17

A person who ‘without just excuse’ disobeys a witness order or summons is guilty of contempt of court. The person may be summarily punished, and it is appropriate for the judge who issued the warrant to deal with the witness. The max penalty is 3 months imprisonment. It is the disobedience of a summons which represents the contempt, and there is no requirement for an arrest warrant to be issued in addition.

Question 18

F11.1 - General rule on opinion evidence

Answer 18

Witnesses may only give evidence of facts they personally perceived and not evidence of their opinion.

Two exceptions to the general rule:

(1) Non-experts: a statement of opinion on any matter not calling for expertise, if made by way of a witness conveying relevant facts personally perceived, e.g. how drunk somebody was
(2) Experts: a statement of opinion on any relevant matter calling for expertise may be made by a witness qualified to give such an expert opinion.

Question 19

F11.1 - objections to the admission of expert opinion evidence

Answer 19

It is for the party proffering the evidence to prove its admissibility if objection is made.

Question 20

F11.2 - Non-expert opinion evidence

Answer 20

• e.g. an identification witness can express the opinion that the accused is the person the witness saw.
• a non-expert may give evidence of opinion to identify an object, handwriting with which they are familiar, or a voice which they recognise
• other examples include evidence of a person’s age, or the general appearance of a person’s state of health, mind or emotion, the speed of a vehicle, the state of the weather, and the passage of time
• non-expert opinion should not be received on the value of less commonplace objects or objects such as antiques and works of art
• on a charge for driving when unfit through drink, the fitness of the accused to drive is a matter calling for expertise, though a non-expert may give evidence of their impression as to whether the accused had taken drink, provided they give the basis for their opinion

Question 21

F11.4 - Competence of expert witnesses

Answer 21

• A jury cannot acquit on the ground of insanity, except on the evidence of two or more registered medical practitioners, at least one of whom is approved by the SoS as having special experience in the diagnosis or treatment of mental disorder.
• Those instructing expert witnesses should satisfy themselves as to their expertise and engage an expert of suitable calibre. However, whether a witness is sufficiently qualified is ultimately a question for the court.
• In rare cases, it may be required to have a voir dire to determine whether a witness should be allowed to give expert evidence, but in the vast majority of cases the judge will be able to make a decision based on written material.
• If the judge wants a voir dire they can canvas the idea with the advocates but if the defence want a voir dire to contest the competence of an expert witness, the burden is on them to make an application to the judge.
• If a witness does give expert evidence, the judge has the power to remove their expert status and limit the evidence to factual matters.

Question 22

F11.5 - Expert witness qualifications etc

Answer 22

The expert’s competence may stem from formal study/training, experience, or both.

Question 23

F11.8 - Matters calling for expertise

Answer 23

• Expert evidence may only be received on a subject calling for expertise, which a lay person could not be expected to possess to a degree sufficient to understand the evidence given in the case unaided. If a tribunal of fact can form its own opinion, expert evidence is inadmissible because it is unnecessary.
• In some cases, it seems that jurors may receive assistance on matters within their own experience and knowledge if it is provided by someone who has had more time and better facilities to consider that matter than it would be practicable to afford to them.

Question 24

F11.35 - Opinions on ultimate issues

Answer 24

• The old common law rule that a witness should not express an opinion on an ultimate issue, i.e. one of the very issues to be determined by the court, probably no longer exists. In practice the rule is largely ignored or treated only as a semantic rule, i.e. that an expert is allowed to express an opinion on an ultimate issue, provided the actual words employed are not noticeably the same as those which will be used when the issue falls to be considered by the court.
• Experts should not usurp the role of the fact finder as the ultimate decision-maker e.g. a psychologist may give evidence of opinion as to why the accused might be disposed to make an unreliable confession but is not entitled to assert that the confession made was in fact unreliable.

Question 25

F11.37 - Duty of experts

Answer 25

CrimPR 19.2

• An expert must help the court to achieve the overriding objective by giving objective, unbiased opinion on matters within his or her area or areas of expertise and by actively assisting the court in case management, in particular complying with court directions and informing the court immediately of any significant failure to take a step required by a direction.
• This duty overrides any obligation to the person instructing the expert
• The duty includes the obligation to (a) define his/her areas of expertise in the report and when giving evidence, (b) when giving evidence, draw the court’s attention to any question to which the answer would be outside their area of expertise, and (c) to inform all parties and the court if his or her opinion changes from that contained in a report served as evidence or given in a statement.

Question 26

F11.42 - Function and weight of expert evidence

Answer 26

• Role of the expert witness is ‘to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form an independent judgement by application of those criteria’
• so it is a misdirection to tell the jury that expert evidence should just be accepted if uncontradicted.
• When expert evidence is given on an ultimate issue, it should be made clear to the jury that they are not bound by the opinion, and that the issue is for them to decide.
• Two clear principles on the issue of diminished responsibility in particular:
  (a) if there were no other circumstances to consider, unequivocal, uncontradicted medical evidence favourable to an accused should be accepted by a jury and they should be so directed; and
  (b) where there were other circumstances to consider, the medical evidence, though it be unequivocal and uncontradicted, must be assessed in the light of the other circumstances