Learning Outcomes
After reading this article, you will be able to explain and apply the rules on competence and compellability of witnesses in criminal trials, including the main statutory provisions, key exceptions (such as for defendants and spouses), and the use of special measures for vulnerable witnesses. You will also be able to identify how these rules operate in both magistrates' court and Crown Court, and apply them to SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the following points relating to competence and compellability of witnesses in criminal proceedings. As you revise this article, focus on:
- the meaning and practical significance of competence and compellability
- the statutory test for competence under the Youth Justice and Criminal Evidence Act 1999 (YJCEA)
- the general rule that competent witnesses are compellable, and the main exceptions
- special rules for defendants, co-defendants, and spouses/civil partners
- the use and scope of special measures for vulnerable witnesses
- how these rules apply in both magistrates' court and Crown Court
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is the statutory test for competence of a witness in criminal proceedings?
- Are all competent witnesses compellable? Name two key exceptions.
- In what circumstances can a spouse or civil partner be compelled to give evidence for the prosecution?
- What are special measures, and who may be eligible to use them in criminal trials?
Introduction
Competence and compellability are central to the admission of witness evidence in criminal trials. These rules determine who may give evidence, who can be required to do so, and the safeguards available for vulnerable witnesses. For SQE1, you must be able to apply the statutory tests, recognise the main exceptions, and understand the practical operation of these rules in both magistrates' court and Crown Court.
Competence of Witnesses
All persons are presumed competent to give evidence in criminal proceedings, regardless of age or mental capacity, unless the court is satisfied otherwise.
Key Term: competence The legal ability of a person to give evidence in criminal proceedings, based on their capacity to understand questions and give intelligible answers.
The statutory test for competence is found in section 53 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA). A person is not competent if it appears to the court that they are unable to:
- understand questions put to them as a witness, and
- give answers to them which can be understood.
This is a question of understanding, not credibility. The burden is on the party challenging competence to show the witness cannot meet this standard.
Children and Vulnerable Witnesses
There is no minimum age for competence. Even very young children may be competent if they can understand and answer questions. Similarly, witnesses with mental health conditions or learning disabilities are competent if they meet the statutory test.
If there is doubt, the court may conduct a short inquiry (often with expert input) to assess competence.
Unsworn Evidence
Children under 14 may give unsworn evidence if they are competent, but cannot understand the nature of an oath. The court must still be satisfied that they understand the duty to tell the truth.
Compellability of Witnesses
A competent witness is generally compellable—meaning they can be required by the court to give evidence—unless a specific exception applies.
Key Term: compellability The legal obligation of a competent witness to give evidence in criminal proceedings if required by the court.
Main Exceptions
The Defendant
A defendant in criminal proceedings is not compellable for the prosecution. They may choose to give evidence in their own defence, but cannot be forced to do so.
Key Term: defendant The person accused of a criminal offence in court proceedings.
Co-defendants
A co-defendant is not compellable for the prosecution while jointly charged and tried. If they plead guilty or are acquitted, they may become compellable.
Key Term: co-defendant A person jointly charged with the defendant in the same criminal proceedings.
Spouses and Civil Partners
A spouse or civil partner of the defendant is generally competent but not compellable for the prosecution, except in certain cases.
Key Term: spouse/civil partner (compellability) The spouse or civil partner of the defendant is only compellable for the prosecution if the charge involves:
- an assault, injury, or threat of injury to the spouse/civil partner or a person under 16, or
- a sexual offence against a person under 16, or attempts/conspiracies to commit such offences. Key Term: specified offence (spousal compellability) For spousal compellability, a specified offence includes assault, injury, or threat of injury to the spouse/civil partner or a person under 16, or a sexual offence against a person under 16.
If the spouse/civil partner is jointly charged, they are not compellable for the prosecution.
Other Exceptions
Some persons may be immune from compellability due to diplomatic or sovereign immunity, but this is rare in criminal trials.
Special Measures for Vulnerable Witnesses
Special measures are available to help vulnerable or intimidated witnesses give their best evidence. These are set out in the YJCEA 1999.
Key Term: special measures Procedural adaptations (such as live links, screens, intermediaries) to assist vulnerable or intimidated witnesses in giving evidence.
Eligible witnesses include:
- all witnesses under 18
- witnesses with a mental disorder, learning disability, or physical disability
- witnesses whose evidence is likely to be affected by fear or distress
Special measures may include:
- giving evidence by live video link
- use of screens in court
- removal of wigs and gowns
- evidence given in private
- intermediaries or communication aids
The court decides which measures are appropriate, considering the needs of the witness and the interests of justice.
Application in Magistrates' Court and Crown Court
The rules on competence and compellability apply in both magistrates' court and Crown Court. In both courts:
- The judge or magistrates may conduct a short inquiry if competence is in doubt.
- The same exceptions to compellability apply.
- Special measures are available in both courts, but are more commonly used in the Crown Court due to the seriousness of cases.
Worked Examples
Worked Example 1.1
A 5-year-old child is the only eyewitness to an alleged assault. The defence objects to the child giving evidence, arguing the child is too young.
Answer: The court will assess the child's competence. If the child can understand questions and give intelligible answers, they are competent, regardless of age.
Worked Example 1.2
The defendant's wife is called as a prosecution witness in a trial for assaulting a neighbour. She does not wish to testify.
Answer: The wife is competent but not compellable for the prosecution, as the offence is not a specified offence against her or a person under 16.
Worked Example 1.3
Two defendants are jointly charged with burglary. The prosecution wishes to call one as a witness against the other.
Answer: While both are jointly charged, neither is compellable for the prosecution. If one pleads guilty or is acquitted, they may become compellable.
Worked Example 1.4
A vulnerable adult with a learning disability is called as a witness. The court is concerned about their ability to give evidence.
Answer: The court will assess competence. If the witness can understand questions and give intelligible answers, they are competent. Special measures (such as an intermediary) may be used to assist them.
Summary
| Rule/Concept | Summary |
|---|---|
| Competence | Presumed for all; only lost if unable to understand questions and give intelligible answers. |
| Compellability | Generally follows competence; key exceptions for defendants, co-defendants, and spouses/civil partners. |
| Spousal compellability | Only for specified offences (e.g., offences against spouse or child under 16, or sexual offences against under 16). |
| Special measures | Available for vulnerable/intimidated witnesses to help them give best evidence. |
Key Point Checklist
This article has covered the following key knowledge points:
- Competence is presumed for all witnesses unless they cannot understand questions and give intelligible answers.
- A competent witness is generally compellable, except for the defendant, co-defendants, and (in most cases) spouses/civil partners.
- Spouses/civil partners are only compellable for the prosecution in cases involving specified offences.
- Special measures are available to support vulnerable or intimidated witnesses.
- These rules apply in both magistrates' court and Crown Court.
Key Terms and Concepts
- competence
- compellability
- defendant
- co-defendant
- spouse/civil partner (compellability)
- specified offence (spousal compellability)
- special measures
