Preliminary Issues with Witnesses Flashcards
When is a witness competent?
When they may be lawfully called to testify
When is a witness compellable?
When they are competent and may be lawfully compelled by the court.
YJCEA 1999, s. 53(1)?
All persons of any age are competent but for 2 exceptions.
What are the 2 exceptions to witness competency?
If they cannot understand questions and give understandable answers; and where they can’t give evidence for prosecution.
What can be said about the main exception to witness competency?
Frequently children and the disabled meet the requirements of lack of understanding.
Who is not competent to give evidence for the prosecution?
Persons charged in criminal proceedings. This doesn’t include people no longer liable for offences in those proceedings
How many exceptions are there to the rule that all competent witnesses are compellable?
4
What is the 1st exception to competent witnesses being compellable?
The accused is not compellable witness for the defence (themselves or their co-accused)
What is the 2nd exception to competent witnesses being compellable?
Accused’s partners/spouses apart from specific offences can’t be compelled by P or D.
What is the 3rd exception to competent witnesses being compellable?
Sovereigns and heads of other states have exceptions, as do diplomats.
Can the defence call the accused as a witness?
Yes, they are competent to be defence witnesses, but cannot be compelled. Can only testify by own choice.
What is the 4th exception to competent witnesses being compellable?
Some bankers are not compellable.
When may a co-accused testify for the prosecution?
Only when they cease to be a co-accused as they are no longer liable for conviction in these proceedings - either due to acquittal or separation of counts.
What regulates competence and compellability of spouses and partners?
YJCEA s. 53(1) and PACE s. 80
PACE s. 80(3)?
Offences a spouse or civil partner cannot be compelled by D for are (1) assault or threat-of to themselves under age 16; (2) sexual offences against minors; (3) conspiring or aiding an attempt to do either.
What does YJCEA 1999 stand for?
Youth Justice and Criminal Evidence Act 1999
What are the rules on spousal compellability?
Spouses (+ civil partners) are compellable by D and P unless a specified offence under PACE s.80(3)
What are the defence compellability rules for ex-spouses and partners?
As if they were never married or together, they are completely compellable.
What are the prosecution rules with spouses and partners testifying?
Spouses and partners are competent to give evidence, and are compellable for special offences (assault etc. against themselves under 16; SA on minors; or conspiracy charges)
YJCEA 1999, s. 53-56?
Governs competency of children and vulnerable adults and whether they can give sworn or unsworn evidence.
What is the general interpretation of competency in children?
Children who can speak and understand basic English with strangers are competent. They need not understand everything or its importance. Just understand D and P questions equally.
YJCEA 1999, s. 55?
Witnesses may give sworn testimony if older than 14 and ‘sufficient appreciation of solemnity of occasion and responsibility to tell the truth’
When is a witness deemed to sufficiently appreciate the solemnity of testifying?
When they can understand questions and give answers that are understandable.
YJCEA s. 55(5)?
Proceedings held to determine whether a witness may give sworn testimony should take place in absence of jury and can include expert evidence (55(6)).
