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Witnesses Competence And Compellability Notes

BPTC Law Notes > Criminal Evidence Notes

Updates Available  

A more recent version of these Witnesses Competence And Compellability notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our Criminal Evidence Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

WITNESSES: COMPETENCE AND COMPELLABILITY Rules:

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To be allowed to give evidence, a witness must be "competent"

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To be required to give evidence (eg. by a witness summons), a witness must be "compellable" Competence

Governed by Youth Justice and Criminal Evidence Act 1999 Presumption: All Witnesses are competent to give evidence (s53(1)) General Test - applied by Court when the Witness' competence is questioned (s53(3))

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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 the questions put to him as a W, and (b) give answers to them that can be understood

Questioning W's Competence s55(1) - Open to party/court of its own motion to question any Witness' competence s53(3) - That party must then satisfy the criteria (prove) on the balance of probabilities Understanding Questions Put & Giving Understandable Answers

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When deciding, the court should consider Witness as having benefit of any available special measures

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Witness does not need to be aware of status as a W - only to understand questions and give understandable answers.
* Infant who can only speak in baby-language: not competent
* Young child who can speak and understand basic English: competent

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R v Sed - Do not require 100% comprehension/comprehensibility
* For Judge to determine question of competence, taking into account Witness' performance as a whole
* Consider whether there is a common comprehensible thread in answers
* If on critical matters the Witness can be intelligible - it is for the Jury to determine his reliability and cogency.

Child Witnesses

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R v B - Additional guidelines on child Witnesses:
* Competence is Witness-specific - there should be no presumptions or preconceptions
* Witness does not need to be intelligible on every question
* It is a matter of judgement - age is a factor but decision concerns the individual Witness

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