Competence and compellability of witnesses in criminal proceedings
Competence and compellability of witnesses in criminal proceedings

The following Corporate Crime guidance note provides comprehensive and up to date legal information covering:

  • Competence and compellability of witnesses in criminal proceedings
  • Competency—general rule
  • Determining competence
  • The accused—evidence on behalf of the prosecution
  • The accused—evidence on behalf of the defence
  • Children
  • People with mental impairment
  • Other groups
  • Compellability—general rule
  • Spouse or civil partner of the accused

Competency—general rule

The most common way for evidence to be adduced is through the testimony of a witness. A witness is said to be competent if he can, as a matter of law, be called by a party to give evidence. All people are deemed competent to give evidence, whatever their age, at every stage in criminal proceedings, with two exceptions:

  1. a person is not competent to give evidence in criminal proceedings if it appears to the court that they are not able to understand questions put to him as a witness and give answers to them that can be understood

  2. a person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether they are tried alone or with a co-accused)

Determining competence

The judge or magistrates decide on the competence of prospective witnesses. Section 54 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999), sets out the procedure to be followed when determining the competency of a witness. In summary:

  1. the competence of a witness can be raised by a party to the proceedings or by the court of its own motion

  2. the party calling the witness must satisfy the court on the balance of probabilities that the witness is competent

  3. the court’s consideration of competence can include