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Law of Evidence - Lecture 9 - Witnesses
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Lecture notes for the Law of Evidence module linked to Raitt on Evidence. Author achieved a first-class grade for the module.
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Lecture 9 – WitnessesNote: an introductory overview only of this wide, practice-orientated (and evolving) area of evidence
and procedure is provided in this module. Students going on to study the Diploma in Legal Practice
will find that issues concerning witnesses form part of professional legal training at that level.
1. GENERAL RULE:
Subject to specific exceptions, every person who is capable of giving understandable evidence is both
a competent and compellable witness.
This means that they can and they must give evidence if they are required to do that in court.
- persons of full legal capacity
This of course relates to people with full legal capacity. So, e.g., a 6-week-old baby would not be a
competent, compellable witness.
- contempt of court: penalty
Also, it's subject to a penalty - if you don't give evidence as required, you might be found liable in
contempt of court.
HMA v Airs 1975 JC 64 *
This was a case involving a journalist who was involved in reporting a criminal offence. It was quite
serious offence and Mr Airs had a private meeting with a source whom he later refused to name in
court when he was called upon to give evidence. He said that he had promised that under no
circumstances would he reveal his 'source's' name. The court said that was not acceptable. That was
not good enough. He was found in contempt of court and he had to pay a fine of £500 - quite a lot of
money at the time.
But the general rule is that everyone is competent and compellable.
2. ISSUES OF COMPETENCY AND COMPELLABILITY:
a. The accused:
Generally competent but not compellable. We all have the right to remain silent if we wish to do that.
Criminal Procedure (Scotland) Act 1995, section 266(2):
‘(2) The accused shall not be called as a witness in pursuance of this section except upon his own
application or in accordance with subsection (9) or (10) below…’
(* 266(9) and (10) relate to cases in which there is more than one accused person and the accused
wishes, e.g., to call a co-accused as a ‘friendly’ witness or to cross-examine the co-accused if not) or
in fact if the accused either places his character or another a witness or the complainer's character in
to the limelight in the court. Then he is opening the door on being required to give evidence.
b. Co-accused:
Generally competent but not compellable.
Criminal Procedure (S) Act 1995, section 266(9)
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