Determining the competence and compelability of these potential witnesses
(a) Charlie is charged with dangerous driving. The CPS wish to call the following, both of whom have made statements to the police, as witnesses for the prosecution:
(i) Ethel, Charlie’s wife. She was traveling in the car with Charlie. Shortly after the accident, she made a statement saving that her husband was distracted by a violent argument with her just before he hit Doris’s bicycle. Recently, she has been in touch with the officer in the case and has told him that she does not want to give evidence because she loves her husband despite everything.
(ii) Freddie, aged nine, who saw the accident while he was waiting for a bus to take him to church, where he sings in the choir. Advise the CPS on the competence and cornpellability of Ethel and Freddie.
(b) Charlie has been prosecuted and acquitted. Civil proceedings have now been begun against him on behalf of Doris for negligence. The claimant’s solicitors wish to call Ethel and Freddie as witnesses.
Advise the solicitors on the competence and compellability of these potential witnesses.
Answer plan
This is one of the topics where evidence law depends on whether the proceedings are criminal or civil. Deal with the criminal trial first, and then the civil trial.
The criminal trial
(i)Ethel.
For competence, see s 53(1) of the Youth Justice and Criminal Evidence Act (YJCEA) 1999. For compellability, see s 80 of the Police and Criminal Evidence Act 1984, as amended by the YJCEA 1999. Is this a ‘specified offense’? Note Doris’s age at the time of the accident. How should ‘involves’ in s 80(3)(a) be interpreted?
(ii)Freddie.
For competence, see s 53(1) of the YJCEA 1999. Note s 55(2)(a).
Presumptions, Competence and Compellability
The civil trial
(i) Ethel.
For competence, see Ex p Fernandez (1861). For compellability, see s 1 of the Evidence Amendment Act 1853.
(ii)Freddie.
Note the possibility of giving sworn evidence. Your starting point will be the Hayes test, with s 96(2) of the Children Act 1989 as a fall-back position.
Answer
The criminal trial Ethel is competent by virtue of s 53(1) of the Youth Justice and Criminal Evidence Act 1999, which provides that, at every stage in criminal proceedings, all persons are (whatever their age) competent to give evidence.
Her compellability will be governed by s 80 of the Police and Criminal Evidence Act 1984, as amended. She will be compellable only if the offence with which her husband is charged is a ‘specified’ offence. At the time of the accident, Doris was under the age of 16. It might be arguable that the offence fell within s 80(3)(a), and so was a specified offence, because it involved injury to a person who was at the material time under the age of 16. The interpretation of ‘involves’ in this provision is uncertain. It might mean ‘involves as a matter of legal definition’, as robbery, for example, involves the use of force or a putting in fear of force.
1 If this approach is adopted, dangerous driving is clearly not a specified offence. On the other hand, ‘involves’ could mean ‘involves as a matter of fact in the circumstances of the particular case’. If that
were the interpretation adopted, the offence with which Charlie is charged would be a specified offence, and Ethel would be compellable.
2 Freddie is in principle competent by virtue of s 53(1) of the Youth Justice and Criminal Evidence Act 1999. There is nothing to suggest that he falls into the category of persons who are not competent that is set out in s 53(3). However, because he is under 14, his evidence will be given unsworn: see s 55(2)(a).
The civil trial
The basic rule, set out in Ex p Fernandez (1861), is that all persons are competent to give evidence and may be compelled to testify. By s 1 of the Evidence Amendment Act 1853, it is specifically provided that the husbands and wives of the parties to civil proceedings are competent and compellable to give evidence on behalf of any of the parties to the proceedings. Ethel will therefore be a compellable witness for the claimant.
Q & A on Evidence
Because this is a civil action, Freddie may give either sworn or unsworn evidence. The question whether he understands the nature of an oath so as to be able to give sworn evidence will presumably be decided by applying the tests formerly used when children gave evidence in criminal proceedings. The judge will question Freddie in open court before he gives evidence.
In Khan (1981), the Court of Appeal said that, although much depended on the type of child before the court, generally, inquiry should be made in the case of a child under 14. The conditions to be satisfied were stated in Hayes (1977) to be that the child had a sufficient appreciation of the solemnity of the occasion, and understood that an oath involved an added responsibility to tell the truth over and above the social duty to do so.
Understanding of a divine sanction is not required.
If these conditions are not satisfied, Freddie may give unsworn evidence. Section 96(2) of the Children Act 1989 provides that a child’s evidence may be heard, even if he does not understand the nature of an
oath, if he understands that it is his duty to speak the truth, and he has a sufficient understanding to justify his evidence being heard. Freddie is likely to be competent, and so also compellable (Ex p Fernandez (1861)).
Notes
- See s 8 of the Theft Act 1968.
- For further discussion, see Tapper, C, Cross & Tapper on Evidence, 9th edn, 1999, pp 220–22
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