Witnesses Evidence the Preliminary Issues

It is your responsibility to keep in touch with witnesses and ensure that they are at court on time. It would also be useful to refresh the witnesses' memory out of court by reading through their witness statement with them.

Competency

A witness is deemed to be competent where his evidence can be received by the court as a matter of law, s 51 (1) YJCEA 1999.Witnesses aged 14 and above will be presumed competent to give sworn evidence and if under 14 competent to give unsworn evidence. In the event that the witness' competence is challenged S54 YJCEA lays down the procedure for the court to decide the case. The court will be looking to ensure that the witness can understand the questions put to the witness and likewise the witnesses answers can also be understood s53 (3) YJCEA 1999. The court may also rule on whether there is need for any special measure before it rules as to competency s 54 (3) YJCEA 1999.

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Compellability

A witness is deemed compellable where he can be made to give evidence and the failure to testify may result in him suffering a penalty. All witnesses are usually competent and compellable for the prosecution except the defendant and co-defendant and the defendant's spouse.

Special Measures Direction s19 YJCEA 1999

This direction aims to make it more comfortable and less traumatic for a vulnerable or intimidated witness to give evidence. S16 YJCEA 1999 defines a vulnerable witness as a witness under 17 years or a witness who suffers from significant impairment of intelligence and social functioning. S17 defines an intimidated witness as a witness whose quality of evidence is diminished by fear or distress associated with testifying. The following special measure may be ordered by the court to protect vulnerable and intimated witnesses:

  • Witness giving evidence behind a screen s23
  • Witness giving evidence through a live TV link s24
  • Witness giving evidence in private s25
  • Removal of lawyers wigs s26
  • Witness giving video recorded evidence ss27-28