Preliminary issues relating to Witnesses

Question 1

When’s a W competent to testify?

Answer 1

All persons (whatever age) are competent to give evidence

Question 2

What are the 2 situations where a person/accused is not competent to testify?

Answer 2

1) Person is unable to understand Qs put to him as W and give answers that can be understood

a) children and people w/ disorder or disability of the mind

Test for competence (low threshold):
- understand/speak basic English (child)
- need not be aware of W status
- need not have recollection of event

NB: Qs of competence take place in absence of jury (party calling W demonstrates competence)

2) A/ co-A not competent to give evidence for P
a) becomes competent if:
- Pleaded G
- Acquitted
- To be tried separately
- A-G entered a nolle prosequi (unwilling to pursue)

NB: A is competent to give evidence for D at any stage but not for P
- A is competent to testify on own behalf during Voir Dire (but cannot be compelled)

Question 3

When’s a W compellable?

Answer 3

Is compellable if, being competent, they may be lawfully be compelled by the court to testify

• A competent W is a compellable W

Question 4

What are the 4 exceptions where W are NOT compellable?

Answer 4

1) A is competent for D but not compellable for D (A or co-A)

2) A’s spouse/ civil partner is compellable for D, but NOT compellable for P or co-A (exceptions in next Q)

3) Heads of state/diplomats

4) Bankers

Question 5

Under PACE s.80, A’s spouse/civil partner is compellable for D but not for P or co-a unless (4) offences involves?

Answer 5

1) A’s spousal/civil partner will be compellable for P/ co- where the offence involves:

2) domestic violence against spouse/civil partner

3) assault/ injury/ threat of injury against child U16

4) sexual offences against child U16

5) attempting/ conspiring/ aiding/ abetting any of the above

Question 6

Where spouse/ civil partner also charged in the proceedings, can they be competent to give evidence for P?

Answer 6

No, only can give evidence in respect to ‘specified offence’ A is charged in the proceedings

Question 7

Are divorced spouse/ ex-CP (& cohabitees) compellable?

Answer 7

Yes, for P or co-A

Question 8

Ws can be called to testify if?

Answer 8

1) Are able to understand Qs put tot hem
2) Give answers to those Qs that can be understood
3) They are competent to gi

Question 9

Can a W testify if W is competent but not permitted to be sworn in?

Answer 9

Yes

• Will give unsown evidence
• Not liable for XX

Question 10

Where a competent Ws is testifying to produce a doc, do thy need to be sworn?

Answer 10

No
- Unless ID of doc disputed

Question 11

P/D challenges the W’s competency by adducing evidence. What’s the the burden and standard of proof?

Answer 11

Burden: party calling W
Standard of proof: OBP that W is at least 14 + sufficient appreciation

Question 12

Where a video recording of interview w/ child (14+) admitted, when do they need to be sworn in?

Answer 12

• Oaths = children
• Before start of XX

Question 13

What persons (2) won’t be sworn in?

Answer 13

1) Children U14

2) Persons w/o ‘sufficient appreciation of the solemnity of the occasion + the particular responsibility to tell the truth which is involved in taking an oath’

Question 14

What’s the proceeding to determine whether W has sufficient appreciation of the solemnity of the occasion + the particular responsibility to tell the truth which is involved in taking an oath?

Answer 14

1) Should take place in the absence of jury

(2) EE may be received on the Q

(3) Any questioning of the W shall be conducted by court, with parties present

Question 15

What’s the effect of allowing a W to give unsworn evidence?

Answer 15

• Not liable for XX

Question 16

Where competent W give unsworn evidence which should’ve been given under oath, will it render it unsafe?

Answer 16

• Will not render any finding/verdict/conviction unsafe

Question 17

Mags/ clerk may issue a witness summons to attend court on specified day if? How’s this WS served?

Answer 17

(1) within jurisdiction & likely to be able to give / produce material evidence or thing,

and

(2) in the interests of justice to issue summons
How to serve it?
(1) handing to individual

(2) leaving at / sending first class to address where reasonable to believe individual will receive it

Question 18

What’s the consequence of disobedience to a witness summons w/o reasonable excuse?

Answer 18

contempt of court [applies to CC as well]

Question 19

What is the criteria for Mags to issue an arrest warrant before summons and after W failed to attend summons?

Answer 19

Clerk cannot issue AW

Mags may issue:
a) before summons:
- satisfied by evidence on oath that it’s probable that a WS would not procure W’s attendance

b) After W failed to attend summons:
1) W likely to be able to give/ produce material evidence (satisfied by evidence on oath)
2) W was been duly served w/ summons & been paid reasonable sums fir expenses
3) no excuses for the failure to attend

Question 20

During trials on indictment, who’s responsible to secure W (for P/D) attendance?

What steps can they take and how compelled an unwilling W?

Answer 20

Responsibility to secure:
P W: Police
D W: Solicitor

Steps taken depends on:
1) W’s sensitivity
2) fixed date for trial or not
3) case in a warned list (1 has daily contact w/ solicitors) or not

Compelling W:
1) Apply for WS (P/D thinks W will not attend voluntarly)
2) Contempt of Court (W disobey w/o just cause)

Question 21

Should a person summoned under s. 97(1) fail to attend as required, the court may issue an arrest warrant (s. 97(3)). It must, however, be satisfied that?

Answer 21

a) the witness is indeed 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.

Question 22

By virtue of CrimPR Part 4, a witness summons may be served in one of the following ways:

Answer 22

(a)by handing it to individual (r. 4.3(1)(a));

(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 (r. 4.4(1) and (2)(a)).

Question 23

Gerald is a prosecution witness aged 15. The defence say that Gerald should not be sworn for the purpose of giving evidence on oath because he has a learning disability. The defence have expert evidence on the point. The prosecution do not accept this and state that Gerald has ‘sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth’ and can be sworn.

Is it for the prosecution or the defence to prove that Gerald may be sworn for the purpose of giving evidence on oath, and to what standard?

Select one:

[A]  It is for the prosecution to prove that Gerald has sufficient appreciation for the proceedings, beyond reasonable doubt.

[B]  It is for the prosecution to prove that Gerald has sufficient appreciation for the proceedings, on the balance of probabilities.

[C]  It is for the defence to prove that Gerald has sufficient appreciation for the proceedings, beyond reasonable doubt.

[D]  It is for the defence to prove that Gerald has sufficient appreciation for the proceedings, on the balance of probabilities.

Answer 23

The correct answer is:
[B]   It is for the prosecution to prove that Gerald has sufficient appreciation for the proceedings, on the balance of probabilities.

[A]  This is wrong as it is to the wrong standard. The correct standard is on the balance of probabilities.

[B]  This is correct as it is for the party seeking to have the witness sworn to satisfy the court, on a balance of probabilities, that he has attained the age of 14 and has a sufficient appreciation of the matters in question (YJCEA 1999, s. 55(4)). (BCP 2023: F4.26(first sub-paragraph)).

[C]  This is wrong, as the defence are not the party seeking to have the witness sworn, it is for that party to prove he has attained the age of 14 and has a sufficient appreciation of the matters in question. Also, the standard of proof is incorrect, the lower standard applies here.

[D]  This is wrong, as the defence are not the party seeking to have the witness sworn, it is for that party to prove he has attained the age of 14 and has a sufficient appreciation of the matters in question. The standard of proof is correct.

SA 12 Preliminary issues relating to witnesses
BCP 2023: F4.26(first sub-paragraph)