Competence and Compellability

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Competence and compellability of witnesses
* A person to give evidence in court has to be legally competent, subject to the rules of admissibility. * A witness is compelled to give evidence, even if it’s against his will. * Failure to do so will result in contempt of court. However it is also contempt of court for a witness to refuse without lawful authority to answer questions put to him. * The modern test for the competence of witnesses varies, depending what type of case it is (civil or criminal). * And also the status of the witness (child, adult, accused, accused spouse, person of defective intellect). * Contempt of court meaning criminal offence.

* The general rule is that a witness is competent if he may lawfully give evidence and compellable if he may lawfully be required to give evidence. Section 53 (1) of the YJCEA 1999, which applies to all witnesses, provides: * “At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.” * Competent witnesses are usually but not necessarily compellable. * The judge decides on the competency of a witness by examining him on a voir dire (a trial within a trial) or by evidence aliunde (i.e., by other and different evidence through television link or expert opinion). * It must be noted, however, that rules of competency and therefore compellability are now enacted in and modified by the YJCEA 1999, and different rules apply to different categories of vulnerable witnesses. Exceptions for a person not to give evidence.

* Person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to understand questions put to him as a witness and give answers to them which can be understood section 53(3).  * A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings) section 53 (4). Civil case law

* Omychund v Barker (1975) abolished the rule of incompetence, all adults who do not suffer from defective intellect are competent and compellable to testify in civil proceedings. * Sovereigns and diplomats are not compelled to testify. * The judge has to be satisfied that a witness is both:

* Capable of speaking coherently and,
* Understands what it means to speak the truth, but also the seriousness of the occasion and the added obligation to speak the truth in court. * This test was subject to exception to accommodate the evidence of children. * This test is known as the Hayes test (R v Hayes 1977). * This test is only used for civil proceedings.

* Case involved the indecency of four small boys, issue being whether a child in competent to give a sworn testimony, COA decided he was competent to give evidence (Bridge LJ). * Fawcett 1976 (small girl, receiving religious instruction) which Hayes overruled because it was ridiculous. Unsworn evidence.

* Current position of competence in civil cases is that the witness is required to give sworn evidence or make a solemn affirmation. Exception
* S.96 of the Children Act 1989 authorising the admissibility of unsworn evidence of children provided that they are able to give sworn evidence. * S.96 (2) of the 1989 Act.
* A child for this purpose is a person who is under the age of 18 (S.105).

Criminal cases
* The rules for competence are governed by the Youth Justice and Criminal Evidence Act 1999. * S53 (1) All persons are competent ….
* S53 (a, b) Sets out the general test where a witness’s competence is called into question. * Two- tiered test laid down in S53 (3), judge will rule on issue of competence, in the absence of a jury. * The legal burden of proof that the witness is competent to testify lies on the party calling the witness and the standard of proof is...
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