Criminal Litigation, Evidence and

Sentencing
Preliminary issues relating to witnesses
SA12/13.4
Problem questions and answers
Question 1

This question challenges you to apply your knowledge of the rules on the competence and
compellability of witnesses and also on securing the attendance of a witness at trial. Please
read the problem question and answer questions 1(a)–1(e).

Ellen leaves her husband, Ryan, and goes to live with her new partner, George. Ryan and
his brother, Lee, are jointly charged with the following offences:
(i) assault occasioning actual bodily harm on George
(ii) assault occasioning actual bodily harm on Ellen
(iii) arson (setting fire to George’s house).

Consider the following issues.

1a. Is Ellen a competent and compellable witness for the prosecution?

Competent: Ellen is competent (Youth Justice and Criminal Evidence Act 1999
(YJCEA), s.53(1)).

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

Compellable: at common law, the general rule is that a competent witness is also
compellable but the Police and Criminal Evidence Act 1984 (PACE), s.80(2A)
applies to the spouse or civil partner of the accused and restricts the types of
offences for which they may be compelled to give evidence at the instance of the
prosecution.

By virtue of s.80(2A)(b) PACE 1984, Ellen, as the spouse of the accused, will only be
compellable in relation to specified offences (as defined by s.80(3)).
 Therefore, Ellen:
• will not be compellable in relation to the assault on George
• will be compellable in relation to the assault on her (s.80(3)(a) PACE 1984)
• will not be compellable in relation to the offence of arson.

If Ellen is called to give evidence about the assault made against herself, she may
choose to answer questions about the other offences, but she is not obliged to
answer.

1b. Ryan and Lee both wish to call Lee’s wife, Yvette, as an alibi witness. Yvette is reluctant
to give evidence.

(i) Can she be compelled to give evidence for her husband, Lee?

Competent: Yvette is competent (YJCEA 1999, s.53(1)).

Compellable: Yvette is compellable to give evidence on behalf of Lee (s.80(2) PACE

1984). (The only exception to this rule is where the spouse is also a co-accused
(s.80(4) PACE 1984)).

(ii) Can she be compelled by Ryan?

Yvette will not be compellable to give evidence for Ryan.

Under PACE 1984, s.80(2A)(a) the spouse of a co-accused is only compellable to
give evidence in respect of a 'specified offence' as defined by PACE 1984, s.80(3).
S.80(3)(a) includes 'an assault on… the wife or husband' of a person charged in
proceedings. This refers to the wife or husband against whom the specified offence is
committed. No specified offence has been committed against Yvette, so Ryan cannot
compel her to attend and give evidence on his behalf.

1c. Is Ryan a competent and compellable witness for Lee?

Competent: Ryan is competent on Lee’s behalf (s.53(1), YJCEA 1999).

Compellable: Ryan is not compellable on Lee’s behalf. Under Criminal Evidence

Act 1898 (CEA), s.1(1), a person charged in criminal proceedings shall not be called
as a witness except at his own application. Therefore, Ryan is not obliged to give
evidence as a witness for Lee.

1d. How would your answer to (c) be affected if Ryan entered a guilty plea at the start of the
trial?

If Ryan entered a guilty plea at the start of the trial he would cease to be ‘a person
charged’ in the proceedings (CEA 1898, s.1(1)). He would then become a
compellable witness on behalf of Lee.

1e. Concerning any witness in this case who was competent and compellable, what
procedure would be followed should they refuse to attend to give evidence in the
magistrates’ court?
 A witness summons may be issued to secure the attendance of a person who is
likely to be able to give material evidence where to do so is in the interests of justice
(Magistrates' Court Act 1980 (MCA), s.97(1)).
A warrant may be issued at the outset if a magistrate is satisfied by evidence on oath
that it is probable that the witness would fail to comply with summons (MCA 1980,
s.97(2)). Alternatively, a warrant may be issued after the issue of summons if a
witness fails to respond to summons. To issue a warrant after the issue of a
summons, the magistrates must be satisfied that the witness is likely to be able to
give material evidence; the witness has been duly served with the summons and
been paid or tendered a reasonable sum for costs and expenses; and there is no just
excuse for the failure to attend (MCA 1980, s.97(3)). Any person who, without just
excuse, disobeys a witness summons requiring him to attend before any court shall
be guilty of contempt of that court and may be punished summarily by that court as if
his contempt had been committed in the face of the court. The maximum period of
imprisonment is three months (Criminal Procedure (Attendance of Witnesses) Act
1965, ss.3(1)–(2)).

Question 2

This question raises issues surrounding vulnerable witnesses, including children and the
accused. In particular, it focuses on their competence, compellability and eligibility for special
measures directions (or other assistance). Please read the problem question and answer
questions 2(a)–(c).

John is charged with the rape of Emily, aged four, and with causing grievous bodily harm
with intent to Sarah, Emily’s mother. At the time that the offences were alleged to have been
committed, Sarah was living with John as his girlfriend. Sarah’s evidence in-chief, to be
recorded in an ‘achieving best evidence’ interview, will be that John confessed to her that he
had raped Emily, to unburden himself. However, she will say that when she told John that
she would have to go to the police, he flew into a rage and attacked her with a knife, inflicting
a facial cut which required 10 stitches. At the time of the trial, Sarah is extremely frightened
and distressed and is living in emergency accommodation. John has been assessed as
having a very low IQ and poor social communication skills.

2a. In respect of Sarah:

(i) Is Sarah a competent and compellable witness for the prosecution?

Sarah’s competence will be determined by s.53(1) YJCEA 1999: 'At every stage in
criminal proceedings all persons are (whatever their age) competent to give
evidence.'

At common law, the general rule is that a competent witness is also compellable.
Therefore, if Sarah is competent, she will also be compellable.

(ii) Will Sarah’s evidence be sworn or unsworn?

Whether a witness gives sworn or unsworn evidence is governed by s.55 and s.56
YJCEA 1999. Sarah will give evidence sworn.

Sarah has a four-year-old daughter so it seems most likely that she has attained the
age of 14. As a competent witness, she can be presumed to have sufficient
 appreciation of the solemnity of the occasion and of the particular responsibility to tell
the truth which is involved in taking an oath (YJCEA 1999, s.55(2) and (3)).

(iii) On what basis is Sarah eligible for special measures to assist her to give her evidence?

Under s.17(5) YJCEA 1999 (as amended) Sarah is automatically eligible for special
measures. By virtue of the offence alleged to have been committed against her, she
will be presumed to be a witness in fear.

S.17(5) YJCEA 1999 states that:

'A witness in proceedings relating to a relevant offence (or to a relevant offence and
any other offence) is eligible for assistance in relation to those proceedings by virtue
of this subsection unless the witness has informed the court of the witness's wish not
to be so eligible by virtue of this subsection.'

'Relevant offences' are defined by s.17(6) as those described in Schedule 1A YJCEA

1999. Schedule 1A lists offences involving the use of a knife or firearm, including
s.18 Offences Against the Person Act 1861.

Accordingly, unless Sarah informs the court that she does not wish for special
measures, she will be entitled to them.

(iv) Which special measures are the court likely to impose?

As Sarah is entitled to special measures, the court must determine appropriate

special measures, or combination of measures, to assist her to give evidence. The
test is set out under YJCEA 1999, s.19(2). The court must determine:
a) whether any special measures would be likely to improve the quality of the
witness’s evidence and, if so,
b) which of these measures would be likely to maximise the quality of the
witness’s evidence (s.19(2) makes it clear that the direction must be tailored
to meet the needs of the individual).

The court is most likely to direct that:

• evidence be given by live link under s.24, and
• an 'achieving best evidence' interview to stand as evidence-in-chief under
s.27.

(v) How would Sarah’s eligibility for special measures be affected had John punched and
kicked Sarah instead of attacking her with a knife?

Sarah would not be automatically eligible for a special measures direction under
YJCEA 1999, s.17(5) as the offence no longer involves the use of a knife or firearm.

However, she will be eligible under YJCEA 1999, s.17(1) if the court is satisfied that
the quality of her evidence is likely to be diminished by reason of her fear or distress
in connection with testifying in the proceedings. It should be stressed that the test
under s.17(1), requires not only that the witness is in fear, but also that the fear is
likely to adversely affect the quality of her evidence.

In determining whether Sarah falls within s.17(1), the court must take into account
the factors under s.17(2).
 If the court determines that Sarah is eligible for assistance under s.17(1) and makes
a declaration of eligibility, then, under s.19(2), the court must go on to determine the
appropriate special measures to assist Sarah.

It is likely that, if declared to be eligible, the court will make a direction for the
following special measures:
• evidence be given by live link under s.24 and
• the 'achieving best evidence' interview to stand as evidence in chief under
s.27.

2b. In respect of Emily, (i) what tests will the court apply in determining whether Emily is a
competent and compellable witness?

Emily is a child witness (aged four). The competence of a child to give evidence in
criminal proceedings is governed by YJCEA 1999, s.53(1). However, s.53(1) is
subject to s.53(3) which provides that a person is not competent if it appears to the
court that she is unable to:
a) understand questions put to her as a witness, and
b) give answers which can be understood.

In R v Barker [2010] EWCA Crim 4 the Court of Appeal laid down the following
guidance in relation to the test set out in s.53(3) of the Youth Justice and Criminal
Evidence Act 1999:
a) In each case, the question is whether the individual witness or child is
competent to give evidence in the particular trial. The question is entirely
witness or child specific. There are no presumptions or preconceptions.
b) The witness does not need to understand the special importance of telling the
truth in court and does not need to understand every single question or give a
readily understood answer to every question. Dealing with it broadly and
fairly, provided the witness can answer the questions put to him and can also
provide understandable answers, he is competent.
c) Questions, of course, come from both sides. If the child is called as a witness
by the prosecution, he should have the ability to understand the questions put
to him by the defence as well as the prosecution and to provide answers to
them which are understandable.
d) Section 53 requires not the exercise of a discretion, but the making of a
judgment on whether the witness fulfils the statutory criteria.

In Barker, the child witness was of a similar age and the allegation was of a similar
nature. The Court of Appeal refused to interfere with the trial judge’s decision to allow
the girl to give evidence.

At common law, the general rule is that a competent witness is also compellable.
Therefore, if Emily is competent, she will also be compellable.

(ii) Will Emily’s evidence be sworn or unsworn?

Under YJCEA 1999, s.55(2)(a), Emily cannot give sworn evidence because she is
not yet 14 years of age. She must give unsworn evidence.

(iii) On what basis is Emily eligible for measures to assist her to give evidence?
 Emily is automatically eligible for special measures directions on two grounds:
• she is a child witness under the age of 18 (YJCEA 1999, s.16(1)(a), as
amended), and
• she is a complainant to a sexual offence and has not informed the court of his
wish not to be so eligible (YJCEA 1999, s.17(4)).

It could be argued that she may also eligible on the grounds of fear (s.17(1)) but
given her automatic eligibility, there would seem little point.

(iv) Which measures may Emily be eligible for and which measures are the court likely to
impose?

As Emily is eligible by virtue of her age (YJCEA 1999 s.16(1)(a)), she is eligible for
the full range of special measures set out in YCJEA 1999 ss.23–30. Had she only
been eligible under s.17(4) the court would have been restricted to ss.23–28 (so
could not have awarded an intermediary or provision of aids to communication).

As Emily is a child witness, the primary rule must be applied (YJCEA 1999, s.21)
before the court goes on to consider the test under s.19 YJCEA 1999.

Under the primary rule, s.21(3) YJCEA 1999, the court must give a special measures
direction which complies with the following requirements:
a) It must provide for any video recorded interview to be admitted under section
27 as the witness’s evidence-in-chief (video recorded evidence in chief)
(s.21(3)(a)).
b) It must provide for any evidence given by the witness in the proceedings
which is not given by means of a video recording (whether in chief or
otherwise) to be given by means of a live link in accordance with section 24
(s.21(3)(b)).

You should be aware that there is scope to disapply the primary rule (for which see
YJCEA 1999, s.21(4)). This is beyond the scope of the syllabus so will not be
addressed here. Given that Emily is four years old, it is highly unlikely that the
primary rule would be disapplied.

Therefore, in Emily’s case, the measures that the court must impose are:
• video-recorded evidence-in-chief: s.27 (unless unavailable)
• if any evidence is not video-recorded, it must be by live link: s.24.

Once the primary rule has been applied, the court will then consider whether any
other special measures will maximise the quality of Emily’s evidence, YJCEA 1999,
s.19. Other special measures that the court may impose could include removal of
wigs and gowns (s.26).

As Emily will not be present in court (her evidence will either be pre-recorded or
given by live link), a screens direction (s.23) and an exclusion direction (s.25) would
serve no useful purpose.

2c. In respect of John:

(i) advise whether John might be eligible for measures to assist him in giving his evidence?
 As an accused, John is excluded from special measures (YJCEA 1999, ss.16(1) and
17(1)).
He may be eligible for a live link if he satisfies the test under YJCEA 1999, s.33A. To
do so, the court must be satisfied that it is in the interests of justice to grant a live link
and that it would enable John to participate more effectively as a witness. In
answering this second question, the court would have to ask:
• Does John have a significant impairment of intelligence and social function?
o The question suggests that John has been ‘assessed as having a very
low IQ’ and poor social communication skills. On the face of it he
appears to fulfil this test.
• Does that impairment render John unable to participate effectively in
proceedings as a witness giving oral evidence?
o John’s impairment affects social communication skills, which implies
that it would have an impact upon effective participation in the trial. It
is likely that when combined with his very low IQ, these render him
unable to participate effectively.
• If so, would the live link enable him to participate more effectively?
o The question would be whether the live link would ameliorate the
situation. Unless it is combined with an intermediary this would be
unlikely.

The court does have the power to appoint an intermediary – the House of Lords in
R(D) v Camberwell Green Youth Court [2005] 1 All ER 999 held that the court has
wide and flexible powers to ensure that the accused is not at a substantial
disadvantage and receives a fair trial.

Under YJCEA 1999, s.19(6)(a), the court retains an inherent power to allow a
defendant to have the benefit of a special measures direction to assist a defendant in
receiving a fair trial.

Whether John’s low IQ would put him at a ‘substantial disadvantage’ cannot be

determined without further information. Should it be necessary for a fair trial (again,
more information is required), the court could use its inherent powers and direct that
John be given the assistance of an intermediary to give his evidence (R (C) v
Sevenoaks Youth Court [2010] 1 All ER 735), however, ‘in light of the scarcity of
intermediaries’ they should be reserved for defendants and witnesses ‘most in need’
(Criminal Practice Directions I para 3F.5).

Where an intermediary is not available, the trial just must assess whether it is
possible to have a fair trial by adapting procedures, for example, taking frequent
breaks and using simple language (Cox [2012] 2 Cr App R 63).

If John were assessed as not being in need of an intermediary, the assessment may
instead recommend that ground rules be set for the conduct of the trial to enable
John to understand and participate in the trial (Grant-Murray [2017] EWCA Crim
1228).

The court is therefore likely to apply close scrutiny to whether a defendant’s evidence
direction is necessary.

(ii) How would your answer to part (i) differ if John was under 18 years of age?
If John was under 18 then the test for eligibility for a live link is more liberal. The court
would have to ask itself if John’s ability to participate effectively as a witness giving
oral evidence is compromised by his ‘level of intellectual ability or social functioning’
(s.33A(4)). It would appear to be the case here.

The reason for the lower threshold, according to the explanatory notes to the Policing
and Justice Act 2006, is that ‘it may be more common for them to experience
difficulties during the trial through limited intelligence, than it would be for adults’.

The explanatory notes also emphasise that s.33A(4) ‘is aimed at juvenile defendants
with a lower level of intelligence or a particular problem dealing with social situations,
and is not intended to operate merely because an accused is a juvenile and is
nervous, for example’.

John’s assessment suggests particular problems beyond mere nervousness, and he

would therefore appear to satisfy the test for a live link.

More evidence may be needed about whether the live link would ameliorate the
situation and allow John to participate more effectively. Once again, consideration
should be given to an intermediary.