LAW3100 EVIDENCE 2019-20

WITNESSES

COMPETENCE AND COMPELLABILITY

Choo, chap 13 (ignore discussion of inferences from silence pp338-342 as we cover this in
semester 2)

1. Competence

 ‘Competence’ deals with the question of whether a witness may legally give evidence
in court. The rules applicable in criminal cases are governed by the Youth Justice and
Criminal Evidence Act 1999 ('YJCEA') section 53:

(1) At every stage in criminal proceedings all persons are (whatever their age)
competent to give evidence.
53(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.
54(2) It is for the party calling the witness to satisfy the court that, on a balance of
probabilities, the witness is competent to give evidence in the proceedings.
(4) Any proceedings held for the determination of the question shall take place in the
absence of the jury (if there is one).
(5) Expert evidence may be received on the question.

R v Sed [2004] EWCA Crim 1294; [2004] 1 WLR 3218

D appealed against his conviction for an offence of attempted rape. The complainant
was an 81-year-old woman who suffered from Alzheimer's disease and her account of
the incident was rambling, confused and unclear, but showed a consistent thread of her
having been the recipient of sexual behaviour which was unwelcome to her. Court held
that the judge had been entitled to conclude that B was competent under s.53 of the
1999 Act. The test did not require a person to understand all questions or give
understandable answers to all questions. It was sufficient if there was an intelligible
thread in responses to questions, even if patchy, which could be evaluated for cogency
and reliability by the jury.

Young witnesses

In R v Wallwork [1958] 42 CAR 153 a girl of 5 years had been called as a witness, and
Lord Goddard CJ observed:

“The court deprecates the calling of a child of this age as a witness…the jury could not
attach any value to the evidence of a child of five: it is ridiculous to suppose they
could…”

However, attitudes have changed:

MacPherson [2005] EWCA Crim 3605

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 “….a child should not be found incompetent on the basis of age alone and the question
of competence can be kept under review”.

R v Barker [2010] EWCA Crim 4 concerned the evidence of a four year old girl (D was
convicted of her rape). On the question of competence the CA held:

‘The question is entirely witness or child specific. There are no presumptions or

preconceptions. The witness need not understand the special importance that the truth
should be told in court, and the witness need not understand every single question or
give a readily understood answer to every question. Many competent adult witnesses
would fail such a competency test. Dealing with it broadly and fairly, provided the
witness can understand the questions put to him and can also provide understandable
answers, he or she is competent. If the witness cannot understand the questions or his
answers to questions which he understands cannot themselves be understood he is not.
The questions come, of course, from both sides. If the child is called as a witness by the
prosecution he or she must have the ability to understand the questions put to him by
the defence as well as the prosecution and to provide answers to them which are
understandable. The provisions of the statute are clear and unequivocal, and do not
require reinterpretation. … We should perhaps add that although the distinction is a fine
one, whenever the competency question is addressed, what is required is not the
exercise of a discretion but the making of a judgment, that is whether the witness fulfils
the statutory criteria. In short, it is not open to the judge to create or impose some
additional but non-statutory criteria based on the approach of earlier generations to the
evidence of small children. In particular, although the chronological age of the child will
inevitably help to inform the judicial decision about competency, in the end the decision
is a decision about the individual child and his or her competence to give evidence in
the particular trial.

Defendant competence for the prosecution

Section 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).
(5) In subsection (4) the reference to a person charged in criminal proceedings does not
include a person who is not, or is not longer, liable to be convicted of any offence in the
proceedings (whether as a result of pleading guilty or for any other reason.

2. Compellability

 ‘Compellability’ deals with the question of whether, as a matter of law, witnesses can be
obliged to give evidence when they do not wish to do so – refusal can be punished as
contempt.

 The general rule is that competent witnesses are also compellable, but there are some
circumstances in which competent witnesses cannot be obliged to give evidence
against their will.

A. Accused

Criminal Evidence Act 1898 section 1 Every person charged with an offence shall be a
competent witness for the defence at every stage of the proceedings, whether the

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 person so charged is charged solely or jointly with any other person. Provided as
follows:
(1) A person so charged shall not be called as a witness in pursuance to this Act except
upon its own application ...

This proviso was undermined by the Criminal Justice and Public Order Act 1994
section 35(2) ... the court shall, at the conclusion of the evidence for the prosecution,
satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that
the accused is aware that the stage has been reached at which evidence can be given
for the defence and that he can, if he wishes, give evidence and that, if he chooses not
to give evidence, or having been sworn, without good cause refuses to answer any
question, it will be permissible for the court or the jury to draw such inferences as
appear proper from his failure to give evidence or his refusal, without good cause, to
answer any question.
(3) ... the court or jury, in determining whether the accused is guilty of the offence
charged, may draw such inferences as appear proper from the failure of the accused to
give evidence or his failure, without good cause, to answer any question. [The Right to
Silence is covered in Semester 2]

The accused is a competent but not compellable witness for a co-accused.

B. Spouse of the Accused

A husband or wife is always compellable to testify on behalf of a spouse subject to

exception that a spouse who is charged in the same proceedings as their husband or
wife, is not compellable to testify for them. .

Police and Criminal Evidence Act 1984 ('PACE') (as amended by YJCEA 1999)
Section 80(2) In any proceedings the wife or husband of a person charged in
proceedings shall, subject to subsection (4) below, be compellable to give evidence on
behalf of that person.
(4) No person who is charged

A spouse is always competent for the prosecution against their husband or wife
however there are restrictions on the compellability of an accused’s spouse. These
apply in relation to a civil partner of the accused as they apply to a spouse of the
accused but do not extend to co-habitees. In sum, there are very limited situations in
which a spouse can be compelled to give evidence against their husband or wife in a
criminal trial.

R v Pearce [2001] EWCA Crim 2834 P appealed against his conviction for murder. At
his trial, P's longstanding cohabitee had given evidence. Had she been married to P she
would have been, pursuant to the Police and Criminal Evidence Act 1984 s.80, a
witness who was competent but not compellable. P contended, inter alia, that her
evidence should have been treated in the same way as that of a spouse. P maintained
that the rationale for the rule in relation to spouses was to protect family relationships
and that the courts should assess the substance of such relationships as well as the
form in order to prevent a breach of the right to family life under the Human Rights Act
1998 Held, dismissing the appeal, that it was not possible to expand s.80 of the 1984
Act so as to include partners. If the existing concession were to be widened it would be
difficult to find a logical end point and potentially cause grave difficulties in the
enforcement of the criminal law.

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 Khan (1986) 84 Cr App Rep 44
Hoskyn v MPC [1979] AC 474

Police and Criminal Evidence Act 1984 ('PACE') (as amended by YJCEA 1999)
Section 80(2) In any proceedings the wife or husband of a person charged in
proceedings shall, subject to subsection (4) below, be compellable to give evidence on
behalf of that person.
Section 80(2A) In any proceedings the wife or husband of a person charged in
proceedings shall, subject to subsection (4) below, be compellable -
(a) to give evidence on behalf of any other person charged in the proceedings but only
in respect of any specified offence with which that other person is charged; or
(b) to give evidence for the prosecution but only in respect of any specified offence with
which any person is charged in the proceedings.
Section 80(3) In relation to the wife or husband of a person charged in any proceedings,
an offence is a specified offence for the purposes of subsection 2A above if -
(a) it involves an assault on, or injury or a threat of injury to, the wife or husband of the
accused, or a person who was at the material time under the age of 16, or
(b) it is a sexual offence alleged to have been committed in respect of a person who
was at the material time under that age, or
(c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling,
procuring or inciting the commission of an offence falling within paragraph (a) or (b)
above.
Section 80(4) No person who is charged in any proceedings shall be compellable by
virtue of subsection (2) or (2A) above to give evidence in the proceedings.

Example: Spouse compellable where D kisses a 15 year old girl – Spouse non-compellable
when D rapes a 16 year old girl. Can this position be justified?

R v L [2008] EWCA Crim 973; see commentary [2008] Criminal Law Review 823-826
D was convicted of raping his 19 year old daughter. D’s wife had made a statement to
the police but refused to give evidence at trial. The prosecution then sought to adduce
her police statement as evidence. The trial judge admitted the evidence and the
defendant appealed. Court of Appeal held that compelling a wife to give evidence was
not the same as permitting another witness to give evidence of a voluntary statement
made by the wife in the past. Accordingly, s.80 of the 1984 Act did not pose a legal bar
to the admission of such evidence (in this case using section 114(d) of the Criminal
Justice Act 2003). However, there was an “obvious paradox”, the court acknowledged,
in excusing a wife from giving evidence, but then placing before a jury in the form of a
hearsay statement the evidence she did not wish to give. The court additionally stated
that there is no basis for a requirement for the police, in circumstances where they are
obliged to caution a husband before taking a statement from him, to tell his wife that she
cannot be compelled to give evidence against her husband before taking a statement
from her. Accordingly, the defendant’s appeal was dismissed.

This case arguably lends greater weight to calls for a fundamental review of the law
governing spousal compellability.

C. Former Spouses
PACE section 80(5) In any proceedings a person who has been but is no longer married
to the accused shall be competent and compellable to give evidence as if that person
and the accused had never been married.

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 See further
Brabin, ‘A Criminal Defendant’s Spouse as a Prosecution Witness [2011] Criminal Law
Review 613
Creighton, 'Spouse Competence and Compellability' [1990] Criminal Law Review 34
Cretney, Davis, 'The Significance of Compellability in the Prosecution of Domestic
Assault' (1997) 37 British Journal of Criminology 75
Ragavan, ‘The Compellability Rule in England and Wales: Support for the Spouse of the
Defendant’ (2013) 77(4) Journal of Criminal Law 310-324
R v BA [2012] EWCA Crim 1529 case commentary by Hoyano [2013] Criminal Law
Review 168-173

D. Sworn and Unsworn Evidence

YJCEA section 55(2) The witness may not be sworn for that purpose unless-
(a) he has attained the age of 14, and
(b) he has a sufficient appreciation of the solemnity of the occasion and of the particular
responsibility to tell the truth which is involved in taking an oath.
(3) The witness shall, if he is able to give intelligible testimony, be presumed to have a
sufficient appreciation of those matters if no evidence tending to show the contrary is
adduced (by any party).
(8) For the purposes of this section a person is able to give intelligible testimony if he is
able to-
(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood.

Reception of unsworn evidence

Section 56(1) Subsections (2) and (3) apply to a person (of any age) who-
(a) is competent to give evidence in criminal proceedings, but
(b) (by virtue of section 55(2)) is not permitted to be sworn for the purpose of giving
evidence on oath in such proceedings.
(2) The evidence in criminal proceedings of a person to whom this subsection applies
shall be given unsworn.

Penalty for giving false unsworn evidence.

Section 57(2) If such a person wilfully gives false evidence in such circumstances that,
had the evidence been given on oath, he would have been guilty of perjury.

2. Oaths and Affirmations

Oaths Act 1978

Perjury Act 1911 s1
Kemble [1990] 1 WLR 1111

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