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 in criminal proceedings
  • Compellability—general rule
  • The accused—evidence on behalf of the prosecution
  • The accused—evidence on behalf of the defence
  • The accused—evidence as a witness for a co-accused
  • The competence of children as witnesses
  • People with mental impairment
  • 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 they 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 them 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) (see further below: The accused—evidence on behalf of the prosecution)

There are no presumptions or preconceptions tied into this statutory test. There can be no challenge to competence based on chronological age or mental capacity, for example, without demonstrating that the person in question cannot understand or answer questions.

Determining competence in criminal proceedings

It is for the judge or magistrates to decide on the competence of prospective witnesses and they may do so on the basis of evidence. Section 54 of the Youth Justice and Criminal Evidence Act 1999