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In the law of evidence, a person is 'competent' if he or she is legally permitted to give evidence in a court hearing. If a person is competent but unwilling to give evidence, then the question of compellability arises (see compellable witness). However, a non-competent witness is never compellable.
The rules on competence (and compellability) are different in civil and criminal proceedings. In both cases the basic principle is that a person is competent, but there are exceptions (particularly for the defendant, his or her spouse, children, and people of limited intellect), and those exceptions are different in criminal and civil proceedings.
By virtue of the Evidence Act (1851) and the Evidence Ammendment Act (1853), any adult of full intellectual capacity is a competent witness for any party. The following sections describe the situation concerning the parties and their spouses, children, and people of limited intellectual capacity.
Civil hearings: competence of parties and their spouses
There are no specific limtations on the competence of the parties and their spouses. Consequently they are deemed to be competent at all stages in civil hearings.
Civil hearings: competence of children
There are no specific statutory rules above the competence of children, so the common law test defined in R v hayes (1976) applies (although this was a criminal case). To be able to give sworn evidence, the child must understand the solemnity of the occasion and the duty to tell the truth.
However, under s.96 of the children act (1989), even if the Hayes test would result in the child not being able to give sworn evidence, he or she may still be competent to give unsworn evidence:
The child’s evidence may be heard by the court if, in its opinion—
(a) he understands that it is his duty to speak the truth; and
(b) he has sufficient understanding to justify his evidence being heard.
Civil hearings: competence of persons of limited intellectual capacity
The rules appears to be the same as for children: since there is no express provision to the contrary, the situation will be governed by the Hayes test.
The general principle is set out in the youth justice and criminal evidence act (1999):
53(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
There are, however, exceptions (see below).
According to s.54 of the 1999 Act, it is for the party who wishes to call a witness to satisfy the court, on a balance of probabilities, that the witness is competent.The court must take into account any 'special measures' that may be implemented to protect the witness (see special measures for witnesses).
Criminal trials: competence of defendant
By s.54(4) of the YJCEA 1999:
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)
This means that the defendant in a criminal trial cannot be called by the prosecution to give evidence against his co-defendants. This measure is intended to protect the defendant's PrivilegeAgainstSelfIncrimination andright to silence -- the 'right to silence' would effectively be abolished in multiple-defendant cases if the prosecution could call defendants to give evidence against each other.
(5) In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).
So a person who has pleaded guilty, or had his proceedings discontinued, can be called by the prosecution.
Criminal trials: competence of defendant's spouse
The defendant's spouse is competent to give evidence for or against the defendant. However, such a person is unlikely to be compellable. See PACE S.80(2A) and (3).
Criminal trials: competence of people of limited intellectual capacity
By s.53(3) of the YJCEA 1999:
'A 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-
(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood.
In general, a person who passes the test of s.53(3) is likely to be able to give sworn evidence
Criminal trials: competence of children
The position regarding children is also governmed by s.53(3), that is, the the child must be able to understand questions and given intelligible replies. However, by s.55, a child under 14 cannot give sworn evidence. A child over that age can only give sworn evidence if he or she has a
sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth