Competence and Compellability in Criminal Proceedings (YJ&CEA 1999)

Competence and Compellability Competent---the witness may testify Compellable---the witness may be required to testify General rule: subject to exceptions, all persons are competent (s.53) (and, if competent, are compellable).

Who is not competent under the 1999 Act (s.53)? A person who cannot understand questions put to him as a witness or whose answers to such questions cannot be understood is not competent and The accused is not competent as a witness for the prosecution (the accused is competent as a defence witness, but see the position re compellability below)

Persons who cannot understand questions or whose answers cannot be understood Burden of proving competence on party calling witness (s.54) Standard of proof balance of probabilities even in relation to prosecution witnesses (s.54) Proceedings to determine competence take place in absence of jury (s.54) Witness (where questioning is necessary) questioned by court, not by parties (s.54) Expert evidence may be received (s.54) Court must consider benefit of special measures direction (if one is to be made) (s.54)

Persons who cannot understand questions etc cont Judge will normally determine competence before witness is sworn, usually at start of trial as a preliminary issue Where video recorded interview (e.g. of child) is tendered judge will watch video and/or question witness and may also receive expert evidence Where video recorded evidence is admitted judge may find it necessary to review competence following cross- examination and re-examination May be possible to determine competence without questing witness (i.e. by viewing video or via expert evidence)

Persons who cannot understand questions etc cont Competence does not require 100% understanding or 100% understandability; what is required will depend upon factors such as the nature of the questions, the complexity of the subject matter and the intelligibility of the witness’ evidence in relation to the critical matters (i.e. the witness’ answers must be intelligible in the context of the case) A child who can communicate with its mother in baby language but who can’t communicate with strangers in basic English will not be competent There is no minimum age limit for competence

Sam, aged 35, a witness in a rape trial, is of low IQ. Which one of [a]. [b] or [c] is true? [a] Sam cannot be competent because he is of low IQ [b] Sam will be competent if he can understand questions put to him as a witness and can give understandable answers thereto but Sam will not be compellable because he is of low IQ. [c] Sam will be competent and compellable if he can understand question put to him as a witness and can give understandable answers thereto [c] is true

Who may not be sworn in criminal proceedings (s.55)? Witness may not be sworn if under 14 years of age; Witness may not be sworn if does not sufficiently appreciate the solemnity of occasion and the particular responsibility of telling the truth which taking the oath involves (presumption in favour of sworn evidence if witness can understand questions & give understandable answers and no contrary evidence adduced) Burden of proof on party calling witness Standard of proof is balance of probabilities (whether prosecution or defence witness)

Who may not be sworn in criminal proceedings (continued) (s.55)? Proceedings in absence of jury Witness (if necessary) questioned by court Expert evidence may be received Benefit of special measures direction (where one is to be made) must be considered.

Who may give unsworn evidence in criminal proceedings (s.56)? A witness who is competent but may not be sworn may give unsworn evidence I.e. a child under 14 who can understand questions & give understandable answers cannot be sworn but may give unsworn evidence and A person 14+ years of age who can understand questions & give understandable answers but does not sufficiently appreciate the solemnity of occasion and the particular responsibility of telling the truth which taking the oath involves cannot be sworn but may give unsworn evidence

Sam, aged 35, a witness in a rape trial, is of low IQ. Which of (i), (ii) and (iii) is/are true? (i) Sam will be competent and compellable if he can understand questions put to him as a witness and can give understandable answers thereto (ii) If Sam is competent he will give sworn evidence because he is over 14 (iii) Sam cannot be competent if he does not sufficiently appreciate the solemnity of occasion and the particular responsibility of telling the truth which taking the oath involves (i) is true

Colin, a very intelligent boy aged 9, is to be called as a witness in a rape trial Which of (i) and (ii) is/are true? (i) Colin will be competent and compellable if he can understand questions put to him as a witness and can give understandable answers thereto (ii) Colin will give sworn evidence if he is competent and sufficiently appreciates the solemnity of occasion and the particular responsibility of telling the truth which taking the oath involves (i) is true

The accused as a prosecution witness Not competent for prosecution if charged in the proceedings (i.e. whilst liable to be convicted of any offence in the proceedings) (s.53). Becomes competent (and compellable) for prosecution where no longer liable to be convicted of any offence in the proceedings (s.53), i.e., where: –pleads guilty; or –has been acquitted; or –nolle prosequi entered; or –indictment severed

The accused as a defence witness (s.1 CEA 1898) Not compellable whilst liable to be convicted (may choose to testify) Becomes compellable where no longer liable to be convicted i.e., where: –pleads guilty; or –has been acquitted; or –nolle prosequi entered; or –indictment severed

Ramesh, who is charged with burglary and intends to plead not guilty, does not wish to testify at his trial. Fred, his co-accused, who intends to plead guilty, does not wish to testify against Ramesh. Which of (i), (ii) or (iii) is/are true? (i) Ramesh will be competent and compellable for the prosecution (ii) Ramesh will be competent and compellable for the defence (iii) Fred will be competent and compellable for the prosecution (iii) is true

Accused’s Spouse/Civil Partner (competence for prosecution) (YJ&CEA 1999 s.53) The accused’s spouse (i.e. husband or wife) or civil partner is not competent for the prosecution if he/she is charged in the proceedings (i.e. the accused’s spouse or civil partner is not competent for the prosecution if the accused’s spouse or civil partner is liable to be convicted of any offence in the proceedings) [See slide above, “Accused as a prosecution witness”]

Accused’s Spouse/Civil Partner (compellability) (PACE s 80) The accused’s spouse or civil partner is never compellable on behalf of prosecution or defence if he/she is charged in the proceedings (i.e. if he/she is liable to be convicted of an offence in the proceedings) The accused’s spouse or civil partner is compellable on behalf of the accused to whom he/she is married or by his or her civil partner if he/she is not liable to be convicted of an offence in the proceedings.

Accused’s Spouse/Civil Partner (compellability) (PACE s 80) (continued) The accused’s spouse or civil partner is compellable on behalf of a co-accused of the accused to whom he/she is married/of his or her civil partner if he/she is not liable to be convicted of an offence in the proceedings but only if s.80(3) applies (i.e. only in respect of a “specified offence”) The accused’s spouse or civil partner is compellable on behalf of the prosecution if he/she is not liable to be convicted of an offence in the proceedings but only if s.80(3) applies (i.e. only in respect of a “specified offence”)

Accused’s Spouse/Civil Partner (compellability) (PACE s 80) (continued) A “specified offence” (see previous slide) is: one involving an assault, injury or threat of injury on/to the spouse/civil partner or a person under 16; or a sexual offence on a person under 16; or attempting, conspiring to commit, aiding, abetting, counselling, procuring or inciting the commission of offences of the above types.

Accused’s Spouse/Civil Partner (compellability) (PACE s 80) (continued) Following divorce/ the termination of a civil partnership the position is as though the former spouses had never been married/the former civil partners had never been civil partners (i.e., once they are divorced/the civil partnership has come to an end the accused’s former spouse/former civil partner is compellable like any other witness)

Adam, Brian and Jim, Brian’s civil partner, are charged with burglary and all intend to plead not guilty. The burglary was witnessed by Chloe, Adam’s ex-wife. Which of (i), (ii) or (iii) is/are true? (i) Jim will be competent and compellable on behalf of Brian (ii) Chloe will be competent and compellable on behalf of the prosecution (iii) Jim will be competent and compellable on behalf of Adam (ii) is true

Henry is charged with an assault on his wife, Emily. Emily does not wish to give evidence for the prosecution. Which one of [a], [b] or [c] is true? [a] Emily will be competent and compellable for the prosecution [b] Emily will be competent for the prosecution but will not be compellable [c] Emily will not be be competent for the prosecution [a] is true

Oath or Affirmation Sworn evidence is evidence by a witness who has taken the oath or made a solemn affirmation The Oaths Act 1978 s.1 prescribes how Christians (New Testament) and Jews (Old Testament) shall take the oath and provides that it shall be administered to members of other religions in “any lawful manner” (e.g. to Muslims on the Koran). If an oath does not comply with s.1 it is still valid if it was taken in a way that the court and the witness regarded as binding upon the witness’ conscience Lack of religious belief does not affect the validity of the oath

Oath or Affirmation (cont) A witness may choose to make a solemn affirmation instead of taking the oath (Oaths Act S.5) It has the same force and effect as the oath (s.5) There is no general entitlement to cross-examine a witness concerning why he affirmed rather than taking an oath, though if counsel agree or the matter has been raised with the judge, sensitive cross- examination may be permissible where there are reasonable grounds for expecting that a witness would normally have taken the oath