Preliminary issues relating to witnesses notes
a. Competence and compellability
F4.1 COMPETENCE = A witness is competent if he may lawfully be called to testify.
COMPELLABLE= A witness is compellable if, being competent, he may lawfully be compelled
by the court to testify.
F4.2 General Rule as to Competence = all persons are whatever their age, competent to give
evidence (s. 53(1) YJCEA 1999).
TWO EXCEPTIONS:
1. If unable to understand questions put to him as a witness and to give answers to them
which can be understood (s. 53(3)) i.e. likely children and persons with a disorder or
disability of the mind.
2. An accused is not competent to give evidence for the P (s. 53(4)) (does not include any
person no longer liable to convicted of any offence whether as a result of pleading guilty
or another reason) (s53(5)).
F4.3 General Rule as to Compellability = all competent witnesses are compellable.
FOUR EXCEPTIONS:
1. The accused is not a compellable witness for the defence, i.e. for himself or co-accused
(s1(1) CEA 1898)
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 P or on behalf of a co-accused (s80 PACE)
3. Applies in the case of the Sovereign, heads of other sovereign States and diplomats
4. Applies in relation to bankers
F4.8 As a Witness for the Prosecution → An accused is not competent as a witness for the
prosecution (s53(4)). A co-accused may only give evidence for the prosecution if he ceases
to be a co-accused i.e. plead guilty or other reasons (s53(5)). 'Other reasons' could be e.g.
acquitted, to be tried separately or the A-G entered a nolle prosequi. If an accused pleads
guilty, he is competent for the P even if he suggests in his evidence that he was not a
participant in the offence, unless the plea is set aside.
F4.10 As a Witness on his Own Behalf
The accused is a competent witness for the defence (s53(1)). Says ‘every stage’ so accused
can give evidence not only in the trial but also after conviction and in mitigation. Also,
accused can elect whether to give evidence on the voir dire.
The accused is not a compellable witness for the defence, not called except upon own
application (S1(1) CEA 1898).
F4.14+5 The spouse/civil partner of the accused as a Witness for the Prosecution:
, Competence:
• The spouse/civil partner of an accused is competent (s53(1)) and irrespective of whether
the evidence to be given will be directed against the accused or any co-accused.
• Unless they are also 'a person charged' in the criminal proceedings (s. 53(4) and (5)
Compellability:
• Spouse or civil partner shall be compellable for the P but only in respect of any 'specified
offence' with which any person is charged in the proceedings (s80(2A) (b) PACE)
• Not compellable where the spouse or civil partner are also charged in the proceedings
(s. 80(4) and (4A)).
• A person who has been but is no longer married/CP to the accused shall be compellable
to give evidence as if that person and the accused had never been married/CP (s80(5)
and (5A).
Specified offence includes (s80(3)(a-c);
(a) If involves assault on/injury or threat of injury to the spouse or civil partner or a person
who was at the 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 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 paragraph (a) or (b).
Sexual offence means: (s80(7):
(7) In subsection (3)(b) above 'sexual offence' means an offence under the Protection of
Children Act 1978 or Part 1 of the Sexual Offences Act 2003, or an offence under section
2 of the Modern Slavery Act 2015 (human trafficking) committed with a view to exploitation
that consists of or includes behaviour within section 3(3) of that Act (sexual exploitation).
The reference in s. 80(3)(c) to incitement has effect as a reference to (or to conduct
amounting to) the offences of encouraging or assisting crime under part 2 of the SCA 2007
(SCA 2007, s. 63(1) and sch. 6, para. 9).
Meaning of spouse/civil partner→ A spouse/CP refers to persons whose marriage or CP
would be recognised by English law. Does not cover cohabitee of accused who is not
married to the accused and respect to family life (Art 8) does not require that such a
cohabitee should not be compelled to give evidence (Pearce [2002]).
Children and persons with a disorder/disability of the mind
F4.21 The Test for Competence→ rule is all persons competent (s53(1)) but not if appears
to the court that he is unable to understand questions put to him (s53(2) and give answers
to them which can be understood (s53(3). The words ‘put to him as a witness’ mean ‘being
asked of him in court’ so a child who can speak and understand basic English with strangers
will be competent but not an infant who can only communicate in baby language with his
mother (MacPherson [2006]). No requirement that W be aware of his status as a witness
and that questions of credibility and reliability are not relevant to competence but go to the
weight of the evidence and may be considered on a submission of no case to answer.
A person who has no recollection of an event may be a perfectly competent witness.
a. Competence and compellability
F4.1 COMPETENCE = A witness is competent if he may lawfully be called to testify.
COMPELLABLE= A witness is compellable if, being competent, he may lawfully be compelled
by the court to testify.
F4.2 General Rule as to Competence = all persons are whatever their age, competent to give
evidence (s. 53(1) YJCEA 1999).
TWO EXCEPTIONS:
1. If unable to understand questions put to him as a witness and to give answers to them
which can be understood (s. 53(3)) i.e. likely children and persons with a disorder or
disability of the mind.
2. An accused is not competent to give evidence for the P (s. 53(4)) (does not include any
person no longer liable to convicted of any offence whether as a result of pleading guilty
or another reason) (s53(5)).
F4.3 General Rule as to Compellability = all competent witnesses are compellable.
FOUR EXCEPTIONS:
1. The accused is not a compellable witness for the defence, i.e. for himself or co-accused
(s1(1) CEA 1898)
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 P or on behalf of a co-accused (s80 PACE)
3. Applies in the case of the Sovereign, heads of other sovereign States and diplomats
4. Applies in relation to bankers
F4.8 As a Witness for the Prosecution → An accused is not competent as a witness for the
prosecution (s53(4)). A co-accused may only give evidence for the prosecution if he ceases
to be a co-accused i.e. plead guilty or other reasons (s53(5)). 'Other reasons' could be e.g.
acquitted, to be tried separately or the A-G entered a nolle prosequi. If an accused pleads
guilty, he is competent for the P even if he suggests in his evidence that he was not a
participant in the offence, unless the plea is set aside.
F4.10 As a Witness on his Own Behalf
The accused is a competent witness for the defence (s53(1)). Says ‘every stage’ so accused
can give evidence not only in the trial but also after conviction and in mitigation. Also,
accused can elect whether to give evidence on the voir dire.
The accused is not a compellable witness for the defence, not called except upon own
application (S1(1) CEA 1898).
F4.14+5 The spouse/civil partner of the accused as a Witness for the Prosecution:
, Competence:
• The spouse/civil partner of an accused is competent (s53(1)) and irrespective of whether
the evidence to be given will be directed against the accused or any co-accused.
• Unless they are also 'a person charged' in the criminal proceedings (s. 53(4) and (5)
Compellability:
• Spouse or civil partner shall be compellable for the P but only in respect of any 'specified
offence' with which any person is charged in the proceedings (s80(2A) (b) PACE)
• Not compellable where the spouse or civil partner are also charged in the proceedings
(s. 80(4) and (4A)).
• A person who has been but is no longer married/CP to the accused shall be compellable
to give evidence as if that person and the accused had never been married/CP (s80(5)
and (5A).
Specified offence includes (s80(3)(a-c);
(a) If involves assault on/injury or threat of injury to the spouse or civil partner or a person
who was at the 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 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 paragraph (a) or (b).
Sexual offence means: (s80(7):
(7) In subsection (3)(b) above 'sexual offence' means an offence under the Protection of
Children Act 1978 or Part 1 of the Sexual Offences Act 2003, or an offence under section
2 of the Modern Slavery Act 2015 (human trafficking) committed with a view to exploitation
that consists of or includes behaviour within section 3(3) of that Act (sexual exploitation).
The reference in s. 80(3)(c) to incitement has effect as a reference to (or to conduct
amounting to) the offences of encouraging or assisting crime under part 2 of the SCA 2007
(SCA 2007, s. 63(1) and sch. 6, para. 9).
Meaning of spouse/civil partner→ A spouse/CP refers to persons whose marriage or CP
would be recognised by English law. Does not cover cohabitee of accused who is not
married to the accused and respect to family life (Art 8) does not require that such a
cohabitee should not be compelled to give evidence (Pearce [2002]).
Children and persons with a disorder/disability of the mind
F4.21 The Test for Competence→ rule is all persons competent (s53(1)) but not if appears
to the court that he is unable to understand questions put to him (s53(2) and give answers
to them which can be understood (s53(3). The words ‘put to him as a witness’ mean ‘being
asked of him in court’ so a child who can speak and understand basic English with strangers
will be competent but not an infant who can only communicate in baby language with his
mother (MacPherson [2006]). No requirement that W be aware of his status as a witness
and that questions of credibility and reliability are not relevant to competence but go to the
weight of the evidence and may be considered on a submission of no case to answer.
A person who has no recollection of an event may be a perfectly competent witness.
