COMPETENCE AND COMPELLABILITY
- Competence: A witness said to be competent if he/she can as a matter of law be called by a party to give evidence in the court.
- Youth Justice and Criminal Evidence Act 1999 [YJCEA] s53(1):
“At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.”
- This is subject to 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 –
(a) understand questions put to him as a witness , and
(b) give answers to them which can be understood.”
The exceptions to this rule are the defendant, children and persons of a defective intellect
- S53(3) was discussed in R v Sed [2004] EWCA Crim 1294, where the defendant was charged with the attempted rape of an elderly woman suffering from Alzheimer’s. “It should be noted that section 53 does not, in terms, provide for 100% mutual comprehension of material exchanges giving rise to potential evidence. And, in our view, depending on the length and the nature of the questioning and the complexity of the matter the subject of it, it may not always require 100%, or near 100%, mutual understanding between questioner and questioned as a pre-condition of competence.
- R v Macpherson ” A child should not be found on the basis of age alone.
- In R v B [2010] EWCA Crim 4, it was held that a witness need not understand the special importance of telling the truth in court, nor understand every question and give readily understandable answers to every question. Provided that the witness can understand the questions put to him and provide understandable answers, he was competent. The court also said that the matter could be re-analyzed after the child had testified and been cross-examined, so that where necessary it could be excluded under s 78 of the Police and Criminal Evidence Act 1984 .
- COMPELLABILITY: General rule, all competent witness is compellable to give witness. A witness said to be compellable if he/she can as a matter of law be compelled by the court to give evidnce.
- Procedure For Determining A Witness’s Competence:
YJCEA 1999 s54 deals with the procedure that the court should follow when determining the competence of a witness. See s54(1): “Any question whether a witness in criminal proceedings is competent to give evidence in the proceedings, whether raised –
(a) by a party to the proceedings, or
(b) by the court of its own motion,
shall be determined by the court in accordance with this section.”
Notes:
The issue may be raised either by a party to the proceedings or by the court of its own motion: s54(1).
- It is a matter for the judge, in the absence of the jury: s54(4).
- The burden of proving competence lies on the party seeking to call the witness, that proof being on a balance of probabilities: s54(2).
- Expert evidence may be received: s54(5).
- Any necessary questioning of the witness shall be done by the court in the presence of the parties: s54(6)
- The issue of competent should be decided at the beginning of the trial: R v Yacoob (1981) 72 Cr App R 313 and R v McPherson [2006] 1 Cr App R 30
The Defendant In a Criminal Case
(a) as a witness for the prosecution:
The defendant is never a competent witness for the prosecution. See YJCEA 1999 s53:
“(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution
(5) In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).”
The defendant may therefore only be a witness for the prosecution if he ceases to be a defendant. This will happen where:
– the Attorney-General files a nolle prosequi (an undertaking to stay proceedings)
– where the defendant is acquitted: R v Conti (1973) 58 Cr App R (where the witness was a former co-defendant who had been acquitted and whom the defendant wished to call as a witness. The conviction was quashed as the judge refused to allow the witness to be called)
– where there are separate trials: An accomplice against whom proceedings are pending must not, in practice, be called as a witness for the prosecution unless it is made clear that the proceedings will be stayed: R v Pipe (1966) 51 Cr App R 17
But this does not apply to defendants so if a defendant wishes to call a witness against whom proceedings are pending he is free to do so: R v Richardson (1967) 51 Cr App R 381
– where the defendant pleads guilty: S53(5)
If the witness is a former defendant who has pleaded guilty, the question arises as to whether he should be sentenced before he gives evidence or afterwards. It is a matter for the discretion of the trial judge, but as a general rule, all parties in the offence will be sentenced together at the end of the trial: R v Weekes (1980) 74 Cr App R 161
(b) as a witness for himself:
The defendant is a competent witness in his own defence at every stage of the proceedings: see YJCEA 1999 s53 (1). However, he is not compellable: Criminal Evidence Act 1898 s1(1), as amended by the YJCEA 1999 s sched 4 para 1:
“(1) A person charged in criminal proceedings shall not be called as a witness in the proceedings except upon his own application.”
Note that the Criminal Justice and Public Order Act 1994 s35 (inferences from the failure of the defendant to give evidence) does not effect this rule, though adverse inferences may be drawn if the defendant fails to give evidence.
A defendant who gives evidence may be cross-examined by a co-defendant, even though the evidence he has given is not adverse to the co-defendant: Murdoch v Taylor [1965] AC 574; R v Hilton [1972] 1 QB 421
Further, the evidence of a defendant who is giving evidence on his own behalf may be used against a co-defendant.
R v Rudd (1948) 32 Cr App R 138 (where the evidence against the co-defendant was given in chief)
R v Paul [1920] 2 KB 183 (where the evidence against the co-defendant was given in cross-examination) c.f. Young v HM Advocate (1932) JC 63
If called as a witness, the defendant gives evidence from the witness box, like any other witness, and not from the dock: CEA s1(4), as amended by YJCEA:
“(4) Every person charged in criminal proceedings who is called as a witness in the proceedings shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.”
(c) as a witness for a co-defendant
A defendant is competent to give evidence for a co-defendant but is not compellable: CEA 1898 s 1(1).
The Defendant’s Spouse or Civil Partner In A Criminal Case
(a) the defendant’s spouse as a witness for the prosecution:
Competence: The spouse is competent in all cases: YJCEA 1999 s53(1) unless they are jointly charged: s80(4)
Compellability: The spouse is compellable in the cases set out in s80(3): s80(2A), (subject to s80(4)):
* cases involving an assault on the spouse or a person under the age of 16
* cases of sexual assault against a person under 16
* attempts etc. to commit such offences.
It seems likely that the spouse of a defendant will only be competent for the prosecution in relation to the specified offences and not in relation to other offences with which the co-defendant may be charged even of he is charged in the same proceedings.
b) the defendant’s spouse as a witness for the defendant:
Competence: The general rule applies and the spouse is always competent: YJCEA S53(1)
Compellability: The spouse of the defendant is always compellable to give evidence on behalf of the defendant spouse unless they are jointly charged: s80(2) and s80(4)
(c) the defendant’s spouse as a witness for the co-defendant:
Competence: The general rule applies and the spouse is always competent: YJCEA S53(1)
Compellability: The spouse is competent to give evidence on behalf of the defendant spouse’s co-defendant only if the offence is one of the specified offences in s80(3), unless they are jointly charged: s80(4)
(d) the defendant’s former spouse:
Competence and compellability: Former spouses are competent and compellable as if they had never been married: s80(5)
Sworn Or Unsworn Evidence
Evidence is usually given on oath, and unsworn evidence will only be received if the witness is a child or is incapable of giving intelligible testimony: See s55:
“(2) the witness may not be sworn for that purpose [i.e. giving evidence] unless –
he has attained the age of 14, and
(b) he has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.
(3) The witness shall, if he is able to give intelligible testimony, be presumed to have a sufficient appreciation of those matters if no evidence tending to show the contrary is adduced (by any party).
(8) For the purpose of this section a person is able to give intelligible testimony if he is able to –
(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood.”
Notes:
1 The issue may be raised either by a party to the proceedings or by the court of its own motion: s55(1).
2 It is a matter for the judge (R v Whitehead (1866) LR 1 CCR 33) in the absence of the jury, if there is one: s55(5).
3 The burden of proving competence lies on the party seeking to call the witness that proof being on a balance of probabilities: s55(4).
4 Expert evidence may be received: s55(6).
5 Any necessary questioning of the witness shall be done by the court in the presence of the parties: s55(7).
6 If the witness is not sworn following s55(2), he shall give evidence unsworn: s56(1) and (2):
(1) Subsection (2) and (3) apply to a person (of any age) who –
(a) is competent to give evidence in criminal proceedings, but
(b) (by virtue of section 55(2)) is not permitted to be sworn for the purpose of giving evidence on oath in such proceedings.
(2) The evidence in criminal proceedings of a person to whom this subsection applies shall be given unsworn.”
7 No appeal shall be founded on the basis that a person giving unsworn evidence should, in fact, have been sworn: s56(5).
8 As to whether unsworn evidence should be received from the child witness, the test is the general test of competency in 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 –
(a) understand questions put to him as a witness , and
(b) give answers to them which can be understood.”
