7.2 Oaths, Affirmations & Compelling Witness Attendance
Key Takeaways
A witness aged 14 or over gives sworn evidence only if they have sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth involved in taking an oath.
A witness under 14 gives unsworn evidence, and a witness of any age who does not satisfy the section 55 test also gives evidence unsworn.
Section 55(8) YJCEA 1999 presumes that a witness aged 14 or over has the necessary appreciation unless evidence is adduced to the contrary, and the party calling the witness must then satisfy the court on the balance of probabilities.
A witness summons in the Crown Court is issued under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, and in the magistrates' court under section 97 of the Magistrates' Courts Act 1980.
A witness who fails to obey a summons without just excuse may be arrested on a warrant and punished for contempt, with up to three months' imprisonment in the magistrates' court.
7.2 Oaths, Affirmations & Compelling Witness Attendance
Two small but heavily examined topics sit alongside competence and compellability: how a witness's evidence is sworn, and how an unwilling witness is brought to court.
1. Sworn and unsworn evidence
The starting point is that evidence in criminal proceedings is given on oath or affirmation. Sections 55 and 56 of the Youth Justice and Criminal Evidence Act 1999 then create a structured exception.
The section 55 test
A person may only be sworn if:
- They have attained the age of 14; and
- They have a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath (s.55(2)).
The consequences run in a clear order:
| Witness | Position |
|---|---|
| Under 14 | Always gives unsworn evidence (s.55(2)(a)) — no inquiry is needed |
| 14 or over | Presumed to have the necessary appreciation "if he is able to give intelligible testimony", unless evidence is adduced to the contrary (s.55(8)) |
| 14 or over, but the presumption is displaced | The party calling the witness must satisfy the court on the balance of probabilities that the s.55(2)(b) test is met (s.55(4)); if it cannot, the witness gives unsworn evidence under s.56 |
The determination takes place in the absence of the jury but in the presence of the parties (s.55(7)), and expert evidence may be received (s.55(6)).
Unsworn evidence is real evidence. By s.56(5), a conviction is not liable to be quashed merely because a person who ought to have been sworn gave evidence unsworn. And by s.57, a person aged 14 or over who gives unsworn evidence commits an offence if they wilfully give false evidence.
Note carefully how this interlocks with competence under s.53: competence and the capacity to be sworn are different questions. A five-year-old may well be competent under s.53 (able to understand questions and give answers that can be understood) yet be incapable of being sworn under s.55. The order of analysis is competence first, then oath.
Affirmation
A witness who objects to being sworn, or for whom it is not reasonably practicable to administer the oath in a manner appropriate to their religious belief, may affirm under the Oaths Act 1978. An affirmation has exactly the same force and effect as an oath — no adverse inference of any kind may be drawn from a witness's decision to affirm, and any suggestion in an SBA that affirmed evidence carries less weight is wrong.
2. Compelling attendance
A witness who is competent and compellable but simply will not attend must be compelled. The machinery differs by court.
Crown Court — Criminal Procedure (Attendance of Witnesses) Act 1965
- Section 2: the Crown Court may (and, where the conditions are satisfied, must on application) issue a witness summons requiring a person to attend to give evidence or produce a document or thing, where the court is satisfied that the person is likely to be able to give evidence likely to be material evidence, or produce a document or thing likely to be material evidence, and that it is in the interests of justice to issue the summons.
- Section 2D: the court may issue a summons of its own motion.
- Section 3: where the person fails to attend and no just excuse is shown, the court may issue a warrant for their arrest.
- Section 4: a witness who disobeys a summons without just excuse is guilty of contempt of court and may be punished summarily by the Crown Court, with up to three months' imprisonment.
Magistrates' court — Magistrates' Courts Act 1980
- Section 97: a justice may issue a summons (or, where satisfied by evidence on oath that a summons would not procure attendance, a warrant) requiring a person to attend to give evidence or produce a document or thing, if satisfied that the person is likely to be able to give material evidence and will not voluntarily attend.
- Section 97(3)–(4): where a witness attends but refuses without just excuse to be sworn or to give evidence, the court may commit them to custody for up to one month or impose a fine.
- A witness who fails to answer a summons may be arrested on a warrant.
CrimPR Part 17
Part 17 supplies the procedure: applications must be in writing, served on the court officer and (usually) the proposed witness, and must explain what evidence the witness can give and why it is material. Where the summons seeks a document — most sensitively, third-party material such as social services or medical records — the person served may apply to have it withdrawn, and the court will consider confidentiality and any public interest immunity claim before ordering production.
The material-evidence threshold matters. A witness summons is not a disclosure device. A summons issued to obtain material for a fishing expedition, rather than because the witness can give evidence likely to be material, is liable to be set aside.
Exam traps in this section
- Under 14 is a bright line: unsworn evidence, no inquiry.
- The s.55(8) presumption applies to those aged 14 or over and is displaced only where evidence is adduced to the contrary; the standard is then the balance of probabilities on the party calling the witness.
- Affirmation carries the same weight as an oath.
- The Crown Court power is the 1965 Act, s.2; the magistrates' power is s.97 MCA 1980. Do not mix them up.
A 9-year-old is called as a prosecution witness. The defence submits that the child should be sworn if the evidence is to carry any weight, and that if the child cannot be sworn the evidence must be excluded. How should the court proceed?
The child must be sworn if the judge is satisfied that they understand the difference between truth and lies, and the evidence is inadmissible otherwise.
The child gives evidence unsworn, because no witness under 14 may be sworn; the separate question of competence under section 53 YJCEA 1999 turns on whether the child can understand questions and give understandable answers.
The child is presumed capable of being sworn under section 55(8) unless the defence adduces evidence to the contrary.
The evidence must be given by video recording only, since a child under 10 cannot give live evidence in criminal proceedings.
A key eyewitness in a Crown Court trial has told the officer in the case that she will not attend court because she is frightened of reprisals. She is competent and compellable. What is the correct procedure?
Apply to the Crown Court under section 97 of the Magistrates' Courts Act 1980 for a summons, since that provision governs all criminal witness summonses.
Apply immediately for a warrant for her arrest, since a summons cannot be issued where the witness has already refused to attend.
Apply to the Crown Court under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 for a witness summons, on the basis that she is likely to give material evidence and that it is in the interests of justice; if she fails to attend, a warrant may issue under section 3, and disobedience without just excuse is contempt punishable by up to three months.
Apply to read her statement as hearsay under section 116(2)(e) without first attempting to secure her attendance, since fear is a complete answer to compellability.
A witness of no religious belief asks to affirm rather than take the oath. Defence counsel proposes to comment in closing that affirmed evidence should be treated with caution. What is the correct position?
Counsel may make the comment, since the oath's religious sanction is what gives sworn evidence its weight.
The witness must be sworn in any event, because affirmation is available only to those with a religious objection to the form of oath used.
The court must hold a voir dire to determine whether the witness's lack of religious belief affects their appreciation of the responsibility to tell the truth.
An affirmation under the Oaths Act 1978 has the same force and effect as an oath, so no adverse comment or inference of any kind may be founded on the choice to affirm.
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