Trial procedure in magistrates' court and Crown Court - Comp...

Learning Outcomes

This article explains the rules and principles of competence and compellability of witnesses in criminal trials, including:

• Core principles and statutory tests governing the competence and compellability of witnesses in criminal trials
• The statutory framework for competence (YJCEA 1999, s. 53) and court determinations of competence in practice
• The distinction between competence and compellability and main exceptions for defendants, co-defendants, and spouses or civil partners
• Circumstances in which the prosecution or defence may or must call particular witnesses, including children, vulnerable adults, and persons with mental impairment
• Operation and procedural application of special measures under the Youth Justice and Criminal Evidence Act 1999, including eligibility and range of measures
• Practical application of these rules in magistrates’ court and Crown Court, including steps to challenge or support witness competence or compellability
• The relationship between evidential rules and the wider ethical and procedural duties of criminal practitioners in witness handling

SQE1 Syllabus

For SQE1, you are required to understand the rules and principles of competence and compellability of witnesses in criminal trials, with a focus on the following syllabus points:

• the legal framework and meaning of competence and compellability in criminal practice
• the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999), especially section 53 on competence
• operation of competence determinations for children, vulnerable adults, and those with mental or physical disabilities
• distinction between unsworn and sworn evidence, with particular regard to children under 14
• the relationship between competence and compellability, and the reason legal obligations to give evidence may not always follow competence
• the main exceptions to compellability: defendants, co-defendants, and spouses/civil partners
• procedural and practical implications of spousal/civil partner compellability in prosecution cases, including “specified offence” definitions
• available special measures for vulnerable and intimidated witnesses under YJCEA 1999, including eligibility, application and types of assistance
• practical application in magistrates’ and Crown Court trials, including court procedure if witness competence is challenged
• the relevance of these rules to ethical duties regarding witness evidence and fair trial rights

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.

1. What is the statutory test for competence of a witness in criminal proceedings?
2. Are all competent witnesses compellable? Name two key exceptions.
3. In what circumstances can a spouse or civil partner be compelled to give evidence for the prosecution?
4. What are special measures, and who may be eligible to use them in criminal trials?

Introduction

Competence and compellability of witnesses are central doctrines in criminal evidence, shaping who may give oral testimony, under what conditions, and when a witness can be lawfully required to do so. These doctrines safeguard the integrity of the trial process, whilst also accommodating the interests of justice, witness vulnerability, and fair trial rights.

In both magistrates’ courts and the Crown Court, these issues particularly arise around children, vulnerable adults, co-defendants, and spouses, as well as when a party wishes to challenge or support the attendance and testimony of a particular person. Applying the rules requires careful attention to statutory definitions, case law, and the proper sequence of criminal procedure.

Key Term: competence
A witness is competent if they can lawfully be called to give evidence in criminal proceedings. This presumes the ability to understand questions and give intelligible answers.

Key Term: compellability
A witness is compellable if, being competent, they may lawfully be required by the court to give evidence under obligation.

Competence of Witnesses

All persons, regardless of age, are presumed competent to give evidence in criminal proceedings unless the statutory test demonstrates otherwise. This presumption underpins the evidential process in criminal law, ensuring that courts can draw on the best available evidence even from sources previously considered questionable, such as very young children or adults with learning disabilities.

The central provision is section 53(1) of the Youth Justice and Criminal Evidence Act 1999 (YJCEA), which states:

“At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.”

However, a witness is not competent if, in the court’s assessment, they are unable:

• to understand questions put to them as a witness, and/or
• to give answers to those questions which can be understood (YJCEA 1999, s. 53(3)).

This is often referred to as the 'intelligible testimony' test. Importantly, this is a question of the witness’s ability to communicate, not of their credibility or the reliability of their account. The law treats competence as a question of threshold capacity, not truthfulness or whether the account is likely to be accurate.

The burden of demonstrating incompetence lies upon the party objecting to the witness, and the standard is the balance of probabilities.

Where competence is in doubt—perhaps due to age, illness, learning disability, or communication impairment—the court may hold a voir dire (a hearing in the absence of the jury) to determine the issue, often with the aid of medical or psychological evidence. The judge or magistrates must be satisfied that the witness understands the nature of questions and can communicate responses.

Children and Vulnerable Witnesses

The presumption of competence applies equally to children. There is no minimum age. Even a child of three or four may be able to give competent evidence so long as the “intelligible testimony” test is satisfied. However, in practice, the younger the child, the more careful the court will be to ensure they can both understand and answer questions.

For adults with mental disorders or learning difficulties, competence must be judged on the same statutory test. For example, a witness with significant learning disabilities who can answer straightforward questions, but struggles with complexity, may be deemed competent with support.

It is possible, and common, for the court to arrange “special measures” to help overcome communication barriers and allow a competent but vulnerable person to testify effectively (see 'Special Measures' below).

Unsworn Evidence and Children

For children under the age of 14, there is an additional rule. They may be found competent for unsworn evidence even if they do not sufficiently understand the nature of an oath or affirmation, so long as the criteria of comprehension and communication are met (YJCEA 1999, s. 55). The court must, however, be satisfied that they understand the duty to tell the truth.

Older children and adults must, subject to competence, give their evidence on oath or affirmation, unless the court directs otherwise.

Practical Application of the Competence Test

The test is routinely applied at any stage—pre-trial or in the course of the trial—where there are real doubts about a witness’s capability. Either the prosecution, defence, or even the court itself may raise the issue. Often, if there is credible medical evidence or reason to be concerned, the court will hold a focused inquiry. The judge or magistrates make the determination; if there is a jury, the inquiry is conducted in their absence.

Compellability of Witnesses

While competence is about whether a witness may give evidence, compellability is about whether they must if required. Not all competent witnesses are compellable. There are several established exceptions, primarily focused on protecting fair trial rights, marital or family relationships, and the position of defendants.

Most witnesses, once found competent, are compellable for both prosecution and defence, unless a statutory exception applies.

Main Exceptions

The Defendant

A person who is charged as a defendant in the proceedings is not compellable for the prosecution. They may choose to give evidence in their own defence but cannot be required to do so (Criminal Evidence Act 1898, s. 1).

If a defendant chooses to give evidence, they must do so first in the defence case. The defendant’s choice not to testify may allow the court or jury to draw adverse inferences (see s. 35 Criminal Justice and Public Order Act 1994), but such inferences can never be the sole basis for conviction.

Key Term: defendant
The person accused and standing trial for a criminal offence.

Co-defendants

A co-defendant is not compellable for the prosecution at trial while they remain charged with any offence in the same proceedings. If a co-defendant has been acquitted, had the indictment against them severed, entered a plea of guilty, or had proceedings permanently stayed, they may then become compellable (YJCEA 1999, s. 53(4)).

Key Term: co-defendant
Person jointly charged in the same criminal proceedings as the defendant.

Spouses and Civil Partners

A spouse or civil partner of the defendant is always competent as a witness, but their compellability for the prosecution is limited. The basic rule is that such a person is not compellable for the prosecution, except in cases regarding certain “specified offences”:

• an assault, injury, or threat of injury to the spouse/civil partner or a person under the age of 16;
• a sexual offence (including attempts, conspiracy, or incitement) against a person under 16.

If the charge relates to any of the above, or the defendant attempts/conspires to commit any such offence, the spouse or civil partner is compellable for the prosecution (s. 80(2A) and (3), Police and Criminal Evidence Act 1984).

If the spouse/civil partner is themselves a co-defendant, they are not compellable. Ex-spouses (i.e., those no longer legally married or in a civil partnership at the time of trial) are not subject to this exception and may be treated as ordinary witnesses.

Key Term: spouse/civil partner (compellability)
The spouse or civil partner of the defendant is compellable for the prosecution only if the charge concerns an offence specified in statute, such as violence or sexual offences against them or someone under 16.

• The rule applies equally in the magistrates’ court and the Crown Court.
• The definition does not extend to unmarried partners, cohabitants, boyfriends/girlfriends, or those in “common law” relationships.

Key Term: specified offence (spousal compellability)
An offence involving assault, injury, threat of injury, or a sexual offence against a spouse, civil partner, or someone under 16.

Other Specific Exceptions

A small number of persons may be immune from giving evidence by virtue of diplomatic or sovereign immunity, or mental incapacity, although such cases are rare in mainstream criminal practice.

Additionally, certain professionals may claim privilege or public policy rights (e.g., legal professional privilege), but this does not generally affect the competence or compellability test as it applies to factual witnesses.

Witnesses Not Compellable on Other Grounds

Relatives, friends, or members of the same household as the defendant are not granted any special immunity except where provided by statute (as above). Minor children, mentally disordered persons, and those who lack full language skills are all presumed competent and compellable if they can understand and answer; special measures and interpreters may be provided as appropriate.

Consequences for Failure to Attend or Testify

If a competent and compellable witness fails to attend court after being validly summoned, the court may issue a warrant for their arrest and, in extreme cases, a witness who refuses to answer questions may be found in contempt of court.

Special Measures for Vulnerable Witnesses

Special measures are a series of adaptations put in place to enable vulnerable or intimidated witnesses to give best evidence. These were introduced under Part II of the Youth Justice and Criminal Evidence Act 1999, and are now a central feature of criminal trials in England and Wales.

Key Term: special measures
Procedural adaptations provided to witnesses who are deemed vulnerable or intimidated, enabling them to give evidence more effectively and reduce psychological or emotional trauma.

Eligible witnesses include:

• all witnesses under the age of 18 at the time of the hearing (YJCEA 1999, s. 16);
• witnesses whose ability to give evidence is impaired by mental disorder, significant impairment of intelligence and social functioning, or physical disability;
• witnesses whose evidence is likely to be diminished by reason of fear or distress, including complainants in sexual offences, domestic abuse, gun and knife crime, and serious violence;
• in some cases, witnesses who are complainants in sexual or certain weapons offences are automatically presumed to be eligible.

Special measures, which may be ordered singly or in combination according to the witness’s needs and the justice of the case, can include:

• live video link from outside the courtroom (the most common measure);
• use of screens in court to shield the witness from the defendant;
• giving evidence in private (court cleared of public and sometimes even press);
• removal of wigs and gowns;
• evidence in chief by pre-recorded video;
• evidence in cross-examination by pre-recorded video (increasingly used in sexual offences and for child witnesses);
• use of intermediaries (communication specialists who may help the witness understand and answer questions);
• permitting aids to communication (such as symbol boards or voice synthesizers).

The court must conduct an individual assessment and is required to give a direction for the use of special measures if the statutory eligibility criteria are met and the measure is likely to improve the quality of the witness's evidence.

The use of special measures does not of itself affect the right of the defendant to a fair trial; judges are required to warn the jury that such arrangements are to assist with giving evidence and should not be taken as implying the reliability of the witness.

The Application Process

Usually, applications for special measures are made at early case management hearings. The court must consult and record both the needs of the witness and whether the measures are likely to improve the quality of their evidence, having regard to their wishes (where possible). The judge or magistrates make the ultimate decision.

Defendant-Witnesses

Where a defendant gives evidence as a witness, the eligibility for special measures is much narrower and generally limited to evidence by live link if this would enable effective participation, given their vulnerabilities (YJCEA 1999, s. 33A).

Application in Magistrates' Court and Crown Court

The framework for competence and compellability is identical in the magistrates’ court and the Crown Court, though the nature of cases means issues are often more acute in the Crown Court.

Procedurally:

• Any doubts as to competence must be resolved by the court before the witness gives evidence, and in the absence of the jury (if applicable).
• In complex or serious cases (common in the Crown Court), challenges to competence, or applications for special measures, often attract detailed evidential inquiry.
• The ordering and use of special measures are subject to judicial discretion in both courts.

In both courts:

• Witness summonses may be served to compel attendance if the witness is compellable.
• The relevant parties may challenge a witness’s competence before commencement, during the trial, or in supplemental hearings if circumstances change or new information arises.
• The same statutory, procedural, and ethical standards for fairness and best evidence apply.

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. There is no statutory minimum age. If necessary, the court may use special measures—such as video link or the assistance of an intermediary—to ensure the child’s evidence is heard and understood.

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. She cannot be compelled to give evidence for the prosecution. However, if she had wished, she could have chosen to do so voluntarily.

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 defendants are jointly charged, neither is compellable for the prosecution while the case is ongoing. If one pleads guilty, is acquitted, or their indictment is severed, they may then become compellable to give evidence for the prosecution or defence.

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 determine competence using the statutory test. If the witness can understand questions and give answers that can be understood, they will be deemed competent. If communication is impaired but potentially remediable, special measures such as an intermediary, communication aids, or a video link may be put in place so the evidence can be properly given and tested in court.

Worked Example 1.5

The defendant is charged with a sexual offence against his 10-year-old step-daughter. The Crown wishes to call his spouse (the mother of the child) as a prosecution witness.

Answer:
The spouse is competent and compellable because the charge is a specified offence (a sexual offence against a person under 16). The spouse may be required to give evidence for the prosecution. If she were a co-defendant or had not been a spouse at the time of the offence, she would not be compellable.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Competence is presumed for all witnesses unless they cannot understand or answer questions.
• The statutory test is based on understanding and communication, not credibility or truthfulness.
• A competent witness is generally compellable but the main exceptions are for the defendant, co-defendant, spouse/civil partner (outside specified offences).
• Spouses/civil partners are only compellable in prosecution for specified offences (certain offences against them or a person under 16).
• Special measures are available for eligible witnesses, notably under-18s and those with mental/physical impairment, or intimidation/fear.
• The regime of competence and compellability, including exceptions and the use of special measures, applies to both magistrates’ court and Crown Court with equivalent procedural safeguards.
• Competence and compellability interact with fair trial rights, ethical obligations, and the overarching need for just, effective proceedings.

Key Terms and Concepts

• competence
• compellability
• defendant
• co-defendant
• spouse/civil partner (compellability)
• specified offence (spousal compellability)
• special measures