Competence and compellability cheat-sheet

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To be able to stand as a witness in a court hearing, a person must be legally competent. A party cannot call a witness who is not competent for that party, even if the witness would be entirely willing to testify.In general, anybody who is capable of capable of understanding questions put to him or her, and giving intelligible answers, is a competent witness for any party. There are, of course, exceptions -- see competent witness for more details.

If a prospective witness is competent, but unwilling to testify, the question of his compellability arises.

The issue of compellability remains a complex one, particularly concerning spouses who are asked to give evidence against each other. See compellable witness for more details.

If a person is judged to be competent and compellable, then it would amount to a contempt of court -- a criminal offence -- for that person to refuse to give evidence, or refuse to answer specific questions. There is an exception where the witness invokes the privilege against self incrimination. However, in practice witnesses do refuse to attend court, or attend and then refuse to answer questions, and when this is the result of fear or intimidation the court is usually sympathetic. The CJA_2003 should make it easier to admit as evidence the written or recorded statements of such witness (which are technically Hearsay).

Please refer to the article ofcompetent witness and Compellable Witness for a detailed discussion of the roles concerning competence and compell ability. The following is a brief summary.

Civil hearings

| Witness/purpose | Competent_ | _Compellable_ | | Claimant/defendant | Yes, for and against any party (s2. EA1851) | Yes, ditto | | Spouses of claimant and defendant | Yes, for and against any party (s1. EA1853) | Yes, ditto | | Children, sworn | If the child understands the duty to tell the truth and the solemnity of the oath (Hayes)2 | If competent (general principle in Hoskyn_)1 | | Children, unsworn | If the child understand the duty to tell the truth and has sufficient understanding (s.96 CA1989) | If competent (general principle in Hoskyn) | | Person of limited intellectual capacity | If the witness understands the duty to tell the truth and the solemnity of the oath (Hayes) | If competent (general principle in Hoskyn_) |

Criminal trials

| Witness/purpose | Competent_ | _Compellable_ | | Defendant, for the prosecution3 | No | No | | Defendant, on his own behalf | Yes | No (but see right to silence for implications of not giving evidence) | | Spouse of defendant, for the prosecution of defendant | Yes (unless witness is co-defendant) (PACE s.80(4)) | If competent, and if a 'specified offence' (PACE - s.80(3)) 4 | | Spouse of defendant, for the prosecution of a co-defendant| Yes (unless witness is co-defendant) (PACE s.80(4)) | If competent, and if a 'specified offence' (PACE - s.80(3)) | | Spouse of defendant, for the defendant | Yes (unless witness is co-defendant) (PACE s.80(4)) | If competent (principle in Hoskyn) | | Spouse of defendant, for a co-defendant | Yes | If a 'specified offence' (PACE s.80(2-3))| | Children, sworn | If the child can understand the questions and give intelligible replies (YJCEA s.53(3)) and if over 14 and appreciates the solemnity of the occasion and the responsibility to tell the truth (YJCEA s.55) | If compentent (principle in Hoskyn) | | Children, unsworn | If the child can understand the questions and give intelligible replies (YJCEA s.53(3)) | If competent (principle in Hoskyn) | | Person of limited intellectual capacity | If the witness can understand the questions and give intelligible replies (YJCEA s.53(3))5 | If competent (principle in Hoskyn) |

Notes:

1: the principle in Hoskyn is that, unless there is an express provision to the contrary, a witness that is competent for a particular party is compellable 2: The 'Hayes test' is that the child understands the significance of the oath and the duty to tell the truth. In fact, Hayes is a criminal case, concerning indecent assaults on children, but it is generally accepted that it applies to civil cases, but now not to criminal cases since these are governed by s.53(3) of the YJCEA 1999 3: not only may the defendant not give evidence for the prosecution against himself, he may not do so against any co-defendant. This is not a matter of compellability, but of competence -- a defendant cannot be called by the prosecution even if he wishes to testify 4: the 'specified offences' are those involving injury or the threat of injury to the spouse or a child under 16, or attempting or conspiring to commit such an offence, or incitement to commit such an offence, or aiding and abetting such an offence 5: a person of limited intellect is also subject to the test in s.55 of the YJCEA 1999, and will only be able to give sworn evidence if he or she is able to understand the solemnity of the occasion and the duty to tell the truth. This issues doesn't seem to arise much in practice -- presumably a person who is able to understand the issues and give intelligible replies will pass this test as well

Abbreviations:

EA - Evidence Act; EAS - Evidence Ammendment Act; CA - Children Act; YJCEA - Youth Justice and Criminal Evidence Act; Hayes - R v hayes (1976); Hoskyn_ - Hoskyn v mpc (1979)





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