COMPETENCY AND COMPELLABILITY

Competency

1. ‘Competency’ deals with the question of whether a witness may legally give evidence in court.

2. ‘Competent’ does not mean ‘reliable’.

3. A witness may not legally be able to give evidence for several reasons. For example, the
witness may be a child who is so young that he or she cannot understand the questions that

vidence
are asked, or give answers that can be understood.

4. Competency in criminal trials is governed by the Youth Justice and Criminal Evidence
Act 1999, SS 53-56.

LL.B
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, or risk punishment for contempt of court if they refuse.

General rule

1. The general rule is that all persons are competent and compellable to give evidence: see Exp.
Fernandez (1861); Hoskyn v Commissioner of Police for the Metropolis (1979).

2. However, there are some circumstances in which competent witnesses cannot be obliged to
give evidence against their will. For example, in many criminal trials, a wife cannot be
obliged to give evidence against her husband, or a husband against his wife. See section 80
of PACE 1984 below.

This topic is divided into two main parts:

• the rules concerning competence and compellability; and

• the effect of a defendant’s failure to testify in a criminal trial.

CRIMINAL CASES
For criminal trials, the relevant law is contained in ss 53 - 57 of the YJCEA which constitutes a code
governing the competence and capacity to be sworn of all persons tendered as witnesses in criminal
cases.

General rule

The general rule for competence of a witness in a criminal trial is found in ss 53 of the YJCEA which
stipulates that all persons are (whatever their age) competent to give evidence so long as they understand
the questions put to them as a witness, and give answers to them which can be understood.

The general rule for compellability is found in the case of Hoskyn v Commissioner of Police for
the Metropolis (1979), where it was held that all competent witnesses are as a general rule compellable.

Also, as a general rule, all evidence must generally be given on oath or affirmation.

While these general rules apply to all witnesses, there are specific provisions for special classes of
witnesses, namely the defendant, the defendant’s spouse, children and persons of defective intellect.

In examining the rules of competence and compellability for these special class of witnesses, it is pertinent
to ask, ‘who will they be testifying for?’.

In a criminal trial, there are three possible parties a witness may testify for:

• the prosecution; or

• the defendant; or

• the co-accused (where applicable).

2.2.1 Witness: defendants in criminal cases

For the defence

1. All defendants are competent but not compellable witnesses in their own defence, or in
defence of a co-accused (CEA 1898, S 1) (D entitled to remain silent)

The effect of a defendant giving evidence

1. He will be liable to cross-examination. His testimony will be evidence at the trial for all
purposes – Rudd (1948).

2. The defendant who gives evidence can also be cross-examined on behalf of any co-defendant.
What if the defendant fails to give evidence?

1. If a defendant fails to give evidence in his or her own defence (or, when giving evidence,
refuses without good cause to answer any question) the court or jury, in determining
whether he or she is guilty of the offence charged, may draw such inferences from that
failure as it may appear proper (CJPOA, S 35).

2. Certain conditions have to be satisfied for this provision to apply. The defendant must:

a. have pleaded not guilty;

b. be physically and mentally fit to testify; and

(Note if the defence wishes to argue that s 35 does not apply because of the defendants’
physical or mental condition, they must be able to point to some admissible evidence
in support of this contention – R v A (1997). The judge will decide on the voir dire
whether the defendant’s condition makes it undesirable, that he give evidence, so as
to make s 35 inapplicable.)

c. be aware of the risks attached to silence.

3. Where an accused gives evidence but fails to answer a certain question, no inferences can
be drawn if he is entitled to refuse to answer the question by virtue of any enactment, or on
the grounds of privilege (for example - legal professional privilege), or where the court in
the exercise of its general discretion excuses him from answering it.

4. How is the judge to direct the jury? R v Cowan (1996) – the judge in any direction under
the section, must tell the jury:

i. the burden of proof remains upon the prosecution throughout and what the required
standard is,

ii. the defendant is entitled to remain silent,

iii. an inference from silence cannot prove guilt on its own,

iv. they must be satisfied there is a case to answer before drawing any inferences from
silence. (Note the judge must have thought there was as otherwise the case would
already have been stopped).

v. that no inference is to be drawn unless they are sure that there is no other reasonable
explanation, consistent with innocence, to account for it.
For the prosecution

1. A defendant is incompetent as a witness for the prosecution (S 53 (4) YJCEA 1999).

2. Where two or more persons are jointly charged and the prosecution wishes to use one as
a witness as against the others, it is necessary to separate that person from his or her
companions, so that he or she ceases to be a co-defendant.

3. Following are some of the ways a co-accused can become competent for the prosecution:

• where he has pleaded guilty and has been convicted;

• where the charges against him are dropped;

• where he has been discharged at the end of the prosecution’s case on a submission of
no case to answer; and
2.2.2 Spouses of defendants and civil partners in criminal cases

Competency

1. Section 53(1) YJCEA 1999 provides that at every stage in criminal proceedings, all persons,
are (whatever their age) competent to give evidence. Hence an accuseds’ spouse is always
competent for the prosecution.

2. However the spouse would not be competent where:

• the spouse cannot understand the questions put to him/her as a witness and give
answers to them which can be understood – S 53 (3) YJCEA 1999, or

• he or she was also a defendant in the same proceedings – S 53(4) YJCEA 1999.

3. Section 53(1) would also make the accused’s spouse competent for the accused and the co-
accused.

4. Note also the more specific provision of s 80(1)(a) which makes the spouse/civil partner of
the accused a competent witness for the prosecution (provided that the spouse/civil partner
itself is not charged in the same proceeding) and s 80(1)(b) which makes the spouse/civil
partner of the accused a competent witness on behalf of the accused or any person jointly
charged with the accused.

Compellability

For the accused

1. Section 80(2) PACE provides that the accused’s spouse is always compellable as a witness for
the accused. But this provision is subject to s 80(4), which provides that no person who is
charged in any proceedings shall be compellable under section 80 to give evidence in those
proceedings.

For the prosecution or co-accused

1. The accused’s spouse, will, again subject to sub-s(4), be compellable for the prosecution and
for her spouse’s co-accused, but only if the offence with which the accused is charged is a
‘specified offence’. – see s 80(2A) PACE 1984.

2. The ‘specified offences’ are set out in section 80(3)(see below).

3. The accuseds’ spouse is compellable for a co-accused only in those circumstances where he
or she would be compellable for the prosecution.
 What are the ‘specified offences’?

The specified offences are set out in s 80(3) of PACE. They are offences where:

a. the offence charged involves an assault on, or injury or a threat of injury to, the spouse of the
accused or a person who was at the material time under the age of 16;

b. the offence charged is a sexual offence alleged to have been committed in respect of a person
who was at the material time under the age of 16; and

c. the offence charged consists of attempting or conspiring to commit either of the above, or
being a secondary party to or inciting either of the above.

2.2.3 Children

1. Section 53(1) YJCEA 1999 - children are competent unless they fall into the category of
persons who are not competent that is set out in section 53(3). See R v MacPherson (2006)
1 Cr App R 30, CA; Sed v The Queen (2004) 1 WLR 3218.

2. Section 53(3) provides that a person is not competent to give evidence 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 witness; and

b. give the answers to them which can be understood.

3. Assuming a child is competent to give evidence; will the evidence be sworn or unsworn?

By section 55(2), no witness may be sworn 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.