Summary TOPIC_12_13_19_AND _20 BPP University College LAW 595403

vTOPIC_12_13_19_AND _20 BPP University College LAW TOPIC 12 - PRELIMINARY ISSUES RELATING TO WITNESSES COMPETENCE AND COMPELLABILITY Meaning of Competence and Compellability F4.1 A witness is competent if the witness may lawfully be called to testify, and is compellable if, being competent, the witness may lawfully be compelled by the court to testify. As to securing the attendance of a witness, whether by witness order or witness summons, see D15.91 et seq. and D22.32 et seq. General Rule as to Competence F4.2 The general rule as to competence is that all persons are, whatever their age, competent to give evidence (YJCEA 1999, s. 53(1)). There are only two exceptions. Under the first exception, a person is not competent if the person is unable to understand questions put to him or her as a witness and to give answers to them which can be understood (s. 53(3), considered further at F4.21). The types of witness who, under this test, may be incompetent are children and persons with a disorder or disability of the mind. Under the second exception, an accused is not competent to give evidence for the prosecution (s. 53(4), considered further at F4.8). Youth Justice and Criminal Evidence Act 1999, s. 53 (1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence. (2) Subsection (1) has effect subject to subsections (3) and (4). (3) 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. (4) 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). (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). General Rule as to Compellability F4.3 The general rule as to compellability is that all competent witnesses are compellable. There are four categories of exception. Under the first, the accused is not a compellable witness for the defence, i.e. for him or herself (see F4.10) or a co-accused (see F4.13) (Criminal Evidence Act 1898, s. 1(1)). Under the second exception, an accused's spouse or civil partner is, in the case of all but a number of specified offences, not compellable for either the prosecution or on behalf of a co-accused (PACE 1984, s. 80, considered at F4.14 et seq.). The third exception applies in the case of the Sovereign, heads of other sovereign States and diplomats (see F4.29). The fourth relates to bankers (see F4.30). As a Witness for the Prosecution F4.8 An accused is not competent as a witness for the prosecution. Under the YJCEA 1999, s. 53(4): '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)'. A co-accused may only give evidence for the prosecution if he or she ceases to be a co-accused. Section 53(5) provides that: '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)'. 'Other reasons' why a co-accused may not, or may no longer, be liable to be convicted, are that the co-accused has been acquitted or is to be tried separately or that the A-G has entered a nolle prosequi. If an accused pleads guilty, he or she is competent for the prosecution even if the accused's evidence suggests that he or she was not a participant in the offence, unless the plea is set aside (McEwan [2011] EWCA Crim 1026). As a Witness on one's Own Behalf F4.10 The accused is a competent witness for the defence pursuant to the YJCEA 1999, s. 53(1), whereby 'At every stage in criminal proceedings all persons are… competent to give evidence'. The phrase 'at every stage in criminal proceedings' allows the accused to give evidence not only in the trial itself, but also after conviction, in mitigation of sentence (see Wheeler [1917] 1 KB 283, a decision construing a similar phrase used in the Criminal Evidence Act 1898, s. 1, prior to its amendment by the YJCEA 1999). There is some old authority to the effect that the accused is not entitled as of right to give evidence on the voir dire (Baldwin (1931) 23 Cr App R 62) but that the court may in its discretion allow the accused to give evidence at this stage if the justice of the case makes this desirable (Cowell [1940] 2 KB 49). The wording of s. 53(1), however, supports the current practice, which is for the accused to elect whether to give evidence on the voir dire. The accused is not a compellable witness for the defence. Under the Criminal Evidence Act 1898, s. 1(1), 'A person charged in criminal proceedings shall not be called as a witness in the proceedings except upon his own application'.