Evidential issues relating to witnesses.docx

*[Evidential issues relating to witnesses -- 1Qs]* Everyone is competent to appear as a witness. ( as long as they can understand the question put to them and give eligible answers). - D is not competent as a P witness. - Witnesses can be compelled. *What is competence and compellability?*...

*[Evidential issues relating to witnesses -- 1Qs]* Everyone is competent to appear as a witness. ( as long as they can understand the question put to them and give eligible answers). - D is not competent as a P witness. - Witnesses can be compelled. *What is competence and compellability?* - A witness is competent if the witness may lawfully be called to testify, and is compellable if, being competent, the witness may lawfully be compelled by the court to testify. *What are the general rules as to competence?* - All persons are, whatever their age, competent to give evidence (YJCEA 1999, s. 53(1)). There are only two exceptions. Under the first exception, a person is not competent if the person is unable to understand questions put to him or her as a witness and to give answers to them which can be understood. - The types of witness who, under this test, may be incompetent are children and persons with a disorder or disability of the mind. - The second exception, the person charged in a criminal proceedigns is not competent to give evidence for the prosecution. (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). *What are the general rules as to compellability?* - The general rule as to compellability is that all competent witnesses are compellable. - There are four categories of exception. Under the first, the accused is not a compellable witness for the defence, i.e. for him or herself (see F4.10) or a co-accused. - Under the second exception, an accused's spouse or civil partner is, in the case of all but a number of specified offences, not compellable for either the prosecution or on behalf of a co-accused. - The third exception applies in the case of the Sovereign, heads of other sovereign States and diplomats (see F4.29). - The fourth relates to bankers (see F4.30). *What about the accused as a witness for the prosecution?* - An accused is not competent as a witness for the prosecution. (whether he is the only person, or is one of two or more persons, charged in the proceedings)' - A co-accused may only give evidence for the prosecution if he or she ceases to be a co-accused. - 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)'. - 'Other reasons' why a co-accused may not, or may no longer, be liable to be convicted, are that the co-accused has been acquitted or is to be tried separately or that the A-G has entered a nolle prosequi. - If an accused pleads guilty, he or she is competent for the prosecution even if the accused's evidence suggests that he or she was not a participant in the offence, unless the plea is set aside. *Can you be a witness on your behalf?* - The accused is a competent witness for the defence pursuant to the YJCEA 1999, s. 53(1), whereby 'At every stage in criminal proceedings all persons are ... competent to give evidence'. The phrase 'at every stage in criminal proceedings' allows the accused to give evidence not only in the trial itself, but also after conviction, in mitigation of sentence. - The wording of s. 53(1), however, supports the current practice, which is for the accused to elect whether to give evidence on the voir dire. - The accused is not a compellable witness for the defence. *What about the exception to compellable witnesses -- wife or civil partner?* - The competence and compellability of the spouse or civil partner of an accused is governed by the YJCEA 1999, s. 53(1). Starting position -- In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable to give evidence on behalf of that person. Spouse or civil partner shall be compellable -- a. to give evidence on behalf of any other person charged in the proceedings but only in respect of any **specified offence** with which that other person is charged; or b. to give evidence for the prosecution but only in respect of any **specified offence** with which any person is charged in the proceedings. Specified offences -- - It involves an assault on, or injury or a threat of injury to, the spouse or civil partner or a person who was at the material time under the age of 16; - it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or - it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph No person who is charged in any proceedings shall be compellable, acc to the above. In any proceedings a person who has been but is no longer married to the accused shall be compellable to give evidence as if that person and the accused had never been married. - Same for civil proceedings. Where in any proceedings "the age of any person at any time is material for the purposes of subsection (3) above, his age at the material time shall for the purposes of that provision be deemed to be or to have been that which appears to the court to be or to have been his age at that time". *What about the a witness to the prosecution?* - The spouse or civil partner of an accused is competent to give evidence for the prosecution. - A spouse or civil partner is competent under s. 53(1) irrespective of whether the evidence to be given will be directed against the accused or any co-accused. As to compellability, the rule, subject to one exception, is that the spouse or civil partner shall be compellable to give evidence for the prosecution, but only in respect of any 'specified offence' with which any person is charged in the proceedings (PACE 1984, s. 80(2A)(b)). - The exception is where the spouse or civil partner is also charged in the proceedings. It is submitted that the words 'spouse' and 'civil partner' used in s. 80 refer to persons whose marriage or civil partnership (wherever celebrated) would be recognised by English law. - It was held that a woman who had gone through a Muslim ceremony of marriage with D who was already married under English law to another woman, was in the same position as a mistress, a woman who had not gone through a ceremony of marriage at all or one who had gone through a ceremony of marriage which was void because bigamous. Do not cover a cohabitee of an accused who is not married to the accused, and that proper respect for family life, as envisaged by the ECHR, Article 8, does not require that such a cohabitee should not be compelled to give evidence. *What about as a witness of the accused?* - The spouse or civil partner of an accused is competent to give evidence for the accused (YJCEA 1999, s. 53(1); see F4.2); and shall be compellable to give evidence for the accused (PACE 1984, s. 80(2)), unless also charged in the proceedings. (does that mean cannot compel if not specified offence? ) *What is the test for competence?* - A person is not competent if it appears to the court that the person is not able to understand questions put to him or her as a witness and (b) give answers to them which can be understood, - It was held that the words 'put to him as a witness' mean the equivalent of 'being asked of him in court'. An infant who can only communicate in baby language with its mother will not ordinarily be competent, but a child who can speak and understand basic English with strangers will be competent. It was also held that there is no requirement that the witness be aware of his or her 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, if appropriate, on a submission of no case to answer. A person who has no recollection of an event may be a perfectly competent witness. Questions to answer -- a. In each case, the question under s. 53 is whether the individual witness or child is competent to give evidence in the particular trial. The question is entirely witness or child specific. b. There are no presumptions or preconceptions. c. The witness does not need to understand the special importance of telling the truth in court and does not need to understand every single question or give a readily understandable answer to every question (applied in IA \[2013\] EWCA Crim 1308 ). Dealing with it broadly and fairly, provided the witness can understand the questions and can also provide understandable answers, the witness is competent. d. Questions, of course, come from both sides. If the child is called as a witness by the prosecution, the child should have the ability to understand the questions put by the defence as well as the prosecution and to provide answers to them which are understandable. e. Section 53 requires not the exercise of a discretion, but the making of a judgment on whether the witness fulfils the statutory criteria. *What is Sworn Evidence?* - A witness may not be sworn for this purpose unless the witness has attained the age of 14 and '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'. - If the witness is able to give intelligible testimony, i.e. is able to understand questions put to him or her as a witness and give answers to them which can be understood (s. 55(8)), the witness is presumed to have a sufficient appreciation of those matters unless any party adduces evidence tending to show the contrary. - If any such evidence is adduced, it is for the party seeking to have the witness sworn to satisfy the court, on a balance of probabilities, that the witness has attained the age of 14 and has a sufficient appreciation of the matters in question. - Any proceedings held for the determination of the question whether a witness may be sworn for the purpose of giving evidence on oath should take place in the absence of the jury. - Expert evidence may be received on the question (s. 55(6)) and any questioning of the witness shall be conducted by the court in the presence of the parties. *What are the general rules and exceptions to oath taking?* - Unless legislation otherwise provides, before giving evidence a witness must take an oath or affirm. - The evidence of a person who is competent to give evidence but who is not permitted to be sworn, shall be given unsworn (see F4.27); and at common law a witness called merely for the purpose of producing a document need not be sworn. - As to producing a document, the witness, if not sworn, is not liable to cross-examination. However, if the identity of the document is disputed, and must be established, this must be done by sworn evidence. - Where a video recording of an interview with a child is admitted under the YJCEA 1999, s. 27, and the child is then aged 14 or over, the oath should be administered before the start of the cross-examination. - Where a witness who is competent to give evidence in criminal proceedings has given evidence unsworn, no conviction, verdict or finding in those proceedings shall be taken to be unsafe for the purposes of the grounds of appeal in the Criminal Appeal Act 1968, s. 2(1), 13(1) or 16(1), by reason only that the witness was a person falling within s. 55(2) of the 1999 Act and therefore should have given evidence on oath. (so is a child under 14 who gives unsworn evidence, because he/she is competent, not liable to cross examination?) *What are witness summons?* The attendance of witnesses for purposes of criminal proceedings in magistrates' courts may be secured by the issue of a summons or warrant under the MCA 1980, s. 97 which applies equally to proposed prosecution and proposed defence witnesses. Where a magistrate is satisfied that: a. any person within the jurisdiction is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, for purposes of a summary trial, and b. it is in the interests of justice to issue a summons to secure the attendance of that person to give evidence or produce the document or thing, the magistrate may issue a summons requiring the person to attend before the court on the date specified in the summons A similar power is given to justices' clerks. Judge can issue a warrant as well but Clerk cannot. 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: 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. Requirement (a) must be established by evidence on oath; requirement (b) may be established either by evidence on oath or in such other manner as is prescribed. A witness summons may be served in one of the following ways: 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)). a person who, without just excuse, disobeys a witness summons is guilty of contempt of court, applies to magistrates' courts as well as the Crown Court. *Who secures the attendance of the witness?* - In most cases, it is the responsibility of the police to secure the attendance of prosecution witnesses, and that of the defence solicitor to ensure that defence witnesses attend. The steps taken will depend on the sensitivity of the witness and whether there is a fixed date for trial, or whether the case is in a warned list in which case an accused, for example, would need to keep in daily contact with solicitors during the period in which the case might be called on. Where the prosecution or defence wish to secure the attendance of a witness but are not satisfied that the witness will attend voluntarily, they can apply for a witness summons. This method can also be used for documents, this is pertinent where the documents are in third party hands. *What happens when you fail to attend?* - A person who 'without just excuse' disobeys a witness order or summons requiring the person to attend court is guilty of contempt of the court that the person fails to attend. - The person may be summarily punished as if having committed a contempt in the court's face (ibid.); it is desirable and appropriate for the judge who issued the warrant to deal in person with the witness.