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12 + 13 Preliminary Issues and Examination of Witnesses
Includes:
- Competence and Compellability;
- Oaths and Affirmations;
- Securing the Attendance of Witnesses;
- Examination-in-Chief;
o Memory Refreshing.
o Previous (inconsistent) statements, complaints, and fabrication.
- Cross-Examination;
o Unfavourable and Hostile Witnesses.
- Re-Examination;
- Special Measures;
Competence and Compellability
Competence
F4.1 A witness is deemed competent if they may be lawfully called to testify, and his
compellable if, whilst competent, the witness may lawfully be compelled by the court to
testify.
F4.2 Under s53(1) Youth Justice and Criminal Evidence Act (YJCEA 1999) the general
rule of competency is that, at any stage of proceedings, all persons, whatever their age,
are competent to give evidence, subject to three exceptions Those being:
S53(3)
1. If the person is unable to understand questions put to them as a witness; or
2. If the person is unable to give answers which can be understood;
This is known as being able to give intelligible testimony.
(4) The other exception to competency is:
3. If the person is being charged in criminal proceedings.
- This does not include a person who is no longer liable for conviction (even if
they have been found/ plead guilty).
- These are to be considered at ‘any every stage of proceedings’: including post-conviction, in
mitigation of sentence.
Children and Disordered Persons
F4.21 s53(3) presents a high bar for incompetency. Caselaw has shown that children who
can speak and understand basic English with strangers will be deemed competent.
Under this section, there isn’t even a requirement that the witness even be aware of their
status as a witness. A person who has no recollection of an event may also be perfectly
competent.
Although, the above examples may be deemed competent, they will introduce questions of
credibility and reliability, reducing the weight of the evidence.
Compellability
, F4.3 The general rule as to compellability is that all competent witnesses are
compatible, bar four exceptions:
1. The accused is not a compatible witness for them self or a co-accused;
2. (Other than in certain specified offences) the accused’s spouse or civil
partner are not compellable for either the prosecution or on behalf of the
co-accused*;
The other two exceptions apply in cases concerning:
3. The Sovereign or heads of other sovereign States and diplomats; and
4. Bankers.
*F.14 The specified offences in which a spouse or civil partner can be compelled to
give evidence on behalf of the prosecution or co-accused are specified under s80(3)
PACE 1984:
(a) It involves an assault on, or injury, or a threat of injury to the spouse or civil
partner or a person under the age of 16;
(b) Is a sexual offence alleged to have been committed to a person under the age
of 16; or
(c) It consists of attempting or conspiring to commit, or of aiding, abetting,
counselling, procuring, or inciting the commission of the above offences.
o ‘Spouse’ and ‘civil partner’ are used to refer to persons who is marriage
or civil partnership is recognised by English law.
Oaths and Affirmations
Evidence in court is divided into sworn and unsworn evidence.
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