Witnesses Competence And Compellability - BPC Criminal Litigation (formerly BPTC)

WITNESSES: COMPETENCE AND COMPELLABILITY

Rules:

• To be allowed to give evidence, a witness must be “competent”

• To be required to give evidence (eg. by a witness summons), a witness must be “compellable”

Competence

Governed by Youth Justice and Criminal Evidence Act 1999

Presumption: All Witnesses are competent to give evidence (s53(1))

General Test – applied by Court when the Witness' competence is questioned (s53(3))

• A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to:

1. understand the questions put to him as a W, and

2. give answers to them that can be understood

Questioning W's Competence

s55(1) - Open to party/court of its own motion to question any Witness' competence

s53(3) – That party must then satisfy the criteria (prove) on the balance of probabilities

Child Witnesses

• Competence is Witness-specific – there should be no presumptions or preconceptions

• Witness does not need to be intelligible on every question

• It is a matter of judgement – age is a factor but decision concerns the individual Witness

• The witness' age not determinative of ability to give truthful/accurate evidence – credibility is an issue for the jury

Expert evidence can be called on the issue of a Witness' competence

Compellability

Rule: All competent Ws are compellable

Exceptions:

The Defendant

1. Not competent as a Witness for the P (unless no longer 'a person charged' i.e. G plea, acquittal, nolle prosequi)

• if pleads G and gives evidence against co-D:

  • Judge has discretion to exclude Defendant's evidence under s78 PACE/common-law, and

  • A “care warning” should be given to the jury about such evidence

2. Not compellable as a Witness for the Defence – gives evidence only “upon his own application”

3. Competent as Witness for co-D, and becomes compellable if no longer 'a person charged'

The Defendant differs from other Witnesses as:

1. Does not have privilege against self-incrimination – must answer all questions (s1(2) Criminal Evidence Act 1898)

2. If Defendant does give evidence – must be the first Defence Witness called

3. the Defendant is present throughout proceedings (other witnesses not allowed in courtroom until after they have given evidence)

4. s101-108 CJA 2003 dictates what bad character evidence regarding the Defendant may be adduced, admissibility of other Witness' bad character is governed by s100 CJA 2003

Defendant's Spouse/Civil Partner

1. As Witness for the Pros OR co-D - Competent (unless also 'a person charged') and NOT Compellable (unless specified offence AND NOT 'a person charged')

• “specified offence” - s80(3):

  1. offence involving assault/injury/threat of injury to:

     • the spouse, or

     • a person under-16 (at the time of the offence)

  2. sexual offence against a person under-16 (at the time of the offence)

  3. conspiring/attempting/aiding/abetting/inciting above...