Compellable witness

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Compellable witness In the law of evidence, a person is `compellable' if he or she can be required to give evidence in court proceedings, even if unwilling. The question of compellability does not arise if a person is willing to give evidence, but that person must still be a Competent Witness for the party who wishes to call him or her.

There are no special rules concerning the compellability of children and persons of limited intellect although, of course, there are rules concerning the competence of such witnesses, and a witness that is not competent is never compellable.

There are a number rare and anomalous instances of non-compellability -- for example, persons with diplomatic immunity are not compellable in any proceedings -- but I don't propose to deal with those here.

Civil hearings

By virtue of the Evidence Act (1851]] and the Evidence Ammendment Act (1853), any competent witness is compellable for any party in a civil hearing. This includes the parties to the hearing, their spouses, and any child or person of limited intellect who is judged competent.

Criminal trials

Again, the basic principle is that all competent witnesses are compellable, but there are exceptions.

Criminal trials: compellability of defendant's spouse

The issue of compellability of a spouse remains a complex one. Please bear in mind that when the Civil Partnership Act2004 comes into force, the rules relating to compellability of spouses will apply also to same-sex couples in a registered Civil Partnership.

At present, the rules are defined in s.80 of P A C E. If X and Y are married (or civil partners]]

Y is compellable for the defence of X (s.80(2]]), unless Y is a co-defendant with X in the same proceedings (s.80(4)); Y is compellable for the defence of any co-defendant of X (s.80(2 A]]) only if the offence committed by that co-defendant is one of the `specified offences' in s.80(3]], and so long as Y is not a co-defendant in the same proceedings. Y is compellable for the prosecution of X, or any co-defendant of X, if the offence is one of the specified offences in s.80(3]]. The question whether Y is compellable if he or she is a co-defendant does not arise, because no defendant is competent for the prosecution. As can be seen, the issue of compellability of a spouse is most tortuous where the spouse is also a defendant in the same proceedings. If that is the case, he or she cannot be compelled to give evidence if to do so would mean that he or she was giving evidence for his or her own prosecution. However, once Y ceases to be a co-defendant, this protection is lost. Y then become compellable for the defence of X, and for the defence or prosecution of X if the charge is one of the `specified offences'. The most usual way in which Y ceases to be a co-defendant is for him to plead guilty. However, if the prosecution discontinues the case against Y, this will have the same effect.

The `specified offences' in s.80(3]] are:

those that involve injury or threat of injury to the spouse or a person under 16 years of age; any sexual offence against a person under 16 years of age; attempting or conspiring to commit any of the above, or inciting anyone else to do so. In summary, a person is not compellable against his or her spouse except where the offence is against the spouse and involves violence, or is a sexual or violent offence against a child. A person his compellable on behalf of_ his or her spouse unless that would have the effect of a defendant being called by the prosecution.

These limitations on compellability apply only to people who are actually married at the time of the hearing.

The fact that a person's spouse refuses to give evidence in proceedings against that person may be prejudicial to the defendant. After all, if the spouse clearly has information relevant to the case, but refuses to expose it in court, it can look as if something is being concealed. Of course, there are likely to be good reasons why a wife does not wish to give evidence in the prosecution of her husband, and vice versa, and by s.80 A, the prosecution may not comment on the failure of a spouse to give evidence.

Note that nothing in P A C E compells either party to give evidence against the other when both are alleged jointly to have harmed a child. There have been frequent calls for changes in the law in this area, because it is often not clear which of the parents is the culprit in child abuse cases and, if both are charged, neither can be compelled to give evidence.

Criminal trials: compellability of defendant

It is a well-established (and hallowed]] principle that the defendant in a criminal trial cannot be compelled to give evidence, either in his own defence or at the behest of the prosecution (see Right To Silence]]. However, under s.35 of the Criminal Justice And Public Order Act1994, the court is allowed to draw the attention of the jury to the defendant's failure to testify, although it must warn the jury of the limitations of inferring a person's guilt from his refusal to testify. In R V Cowan Etc1996, the Court Of Appeal approved the J S B Direction Where Accused Does Not Testify as the correct form in which this warning should be given. In short, the jury must be told that (i]] the defendant is perfectly entitled to remain silent; (ii]] his silence alone can never be proof of his guilt; (iii]] if the prosecution have not established that the defendant has a case to answer, his failure to testify should not count against him; (iv]] it is for the jury to decide whether the defendant's failure to testify counts against him, having regard to any explanation that may have been offered for this course of action.