7.1 Witness Competence, Compellability & Special Measures

7.1 Witness Competence, Compellability & Special Measures

In criminal litigation within England and Wales, the rules governing witness testimony dictate who may be called to give evidence (competence), who may be legally required to testify under threat of contempt (compellability), and what procedural accommodations (special measures) must be deployed to assist vulnerable or intimidated witnesses. These principles balance the defendant's right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR) against the public interest in securing accurate, uninhibited testimony from victims and witnesses.

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1. General Presumption & Statutory Exceptions to Witness Competence

The statutory starting point for witness competence is established by Section 53(1) of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999): At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence. This universal presumption applies equally to prosecution and defence witnesses, children, and individuals suffering from physical or mental disabilities.

The Incapacity Exception

Under Section 53(3) YJCEA 1999, a person is not competent to give evidence in criminal proceedings if it appears to the court that they are unable to:

1. Understand questions put to them as a witness, and
2. Give answers to them which can be understood.

Competence is tested on the balance of probabilities (Section 54(2) YJCEA 1999). The assessment focuses on the witness's capacity to communicate effectively in court rather than general intelligence, legal capacity, or full mental health. Expert medical or psychological evidence may be received to assist the court (Section 54(1)), but the determination remains a question of law for the judge or magistrates. Competence is assessed at the time the witness is called to give evidence.

Competence of the Accused & Co-Defendants

Special statutory restrictions govern the defendant:

• Prosecution Witness: Under Section 53(4) YJCEA 1999, an accused person is incompetent to give evidence for the prosecution at their own trial. This prohibition extends to any co-defendant tried jointly upon the same indictment or charge sheet.
• Defence Witness: An accused is competent to give evidence in their own defence (Section 53(1)). However, an accused cannot be compelled to give evidence by any party, including co-defendants.
• Converting a Co-Defendant into a Competent Prosecution Witness: If the prosecution wishes to call a co-defendant, that person must cease to be an "accused" in the joint proceedings. This is achieved by:
  1. Entering a nolle prosequi;
  2. Offering no evidence against the co-defendant (resulting in an acquittal);
  3. Pleading guilty and being sentenced prior to testifying (ensuring no financial or sentencing inducement colors their evidence); or
  4. Severing the indictments to hold separate trials.

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2. Compellability of Witnesses & Spousal Immunity under PACE 1984 s.80

Compellability refers to whether a competent witness can be lawfully compelled by subpoena or witness summons (under Section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 or Section 97 of the Magistrates' Courts Act 1980) to attend court and give evidence under sanction of contempt.

General Rule of Compellability

As a general common law rule, any witness who is competent is also compellable for both prosecution and defence. However, major statutory exceptions protect specific relationships and the privilege against self-incrimination.

The Accused

The accused is never compellable to give evidence for themselves or for any co-defendant. If the accused elects not to testify, they cannot be cited for contempt, though adverse inferences may be drawn under Section 35 of the Criminal Justice and Public Order Act 1994 (CJPOA 1994).

Spousal and Civil Partner Compellability (PACE 1984 s.80)

The compellability of an accused's spouse or civil partner is regulated strictly by Section 80 of the Police and Criminal Evidence Act 1984 (PACE 1984) (as amended by the Civil Partnership Act 2004):

• Competence: A spouse or civil partner of the accused is competent to give evidence for the prosecution, the accused, or a co-defendant in all criminal proceedings (Section 80(1)).
• Compellability for the Accused: A spouse/civil partner is always compellable to give evidence on behalf of the accused (Section 80(2)).
• Compellability for a Co-Defendant: A spouse/civil partner is compellable for a co-defendant ONLY if the offence charged falls within the specified statutory exceptions set out in Section 80(3).
• Compellability for the Prosecution: A spouse/civil partner is not compellable for the prosecution UNLESS the charge falls into one of the specified statutory categories under Section 80(3) PACE 1984:
  1. An offence which involves an assault on, or injury or a threat of injury to, the spouse/civil partner or a person who was at the material time under the age of 16;
  2. A sexual offence alleged to have been committed against a person who was at the material time under the age of 16; or
  3. Attempting, conspiring, aiding, abetting, procuring, or inciting any of the above offences.

Former spouses and former civil partners are compellable as if they had never been married or in a civil partnership (Section 80(5) PACE 1984). Cohabiting partners who are not lawfully married or in a registered civil partnership derive no protection from Section 80 and are fully compellable for all parties.

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3. Special Measures Directions under YJCEA 1999 ss.16–30

To ensure that vulnerable witnesses can provide high-quality evidence without suffering secondary trauma, Part II of the YJCEA 1999 provides a comprehensive statutory scheme of Special Measures Directions.

Eligibility Criteria

Witnesses are categorized into two statutory eligibility groups:

1. Vulnerable Witnesses (Section 16 YJCEA 1999):

   • Child Witnesses: Any witness under the age of 18 at the time of the hearing is automatically eligible (Section 16(1)(a)).
   • Adult Vulnerable Witnesses: Witnesses whose quality of evidence is likely to be diminished owing to a mental disorder (within the Mental Health Act 1983), significant impairment of intelligence and social functioning, or a physical disability/disorder (Section 16(1)(b)).

2. Intimidated Witnesses (Section 17 YJCEA 1999):

   • Witnesses whose quality of evidence is likely to be diminished by reason of fear or distress in connection with testifying in the proceedings.
   • Complainants in sexual offences, modern slavery offences, and specified firearm/gang violence offences are automatically treated as intimidated witnesses unless they inform the court otherwise (Section 17(4)).

Available Special Measures Measures (ss.19–30 YJCEA 1999)

When an eligibility threshold is satisfied, the court may grant one or more of the following measures:

• Screens (Section 19): Shielding the witness from seeing the accused while giving evidence.
• Live Link (Section 24): Allowing the witness to testify from outside the courtroom via video link.
• Evidence in Private (Section 25): Clearing the public gallery (applicable to sexual offences or cases involving severe intimidation).
• Removal of Wigs and Gowns (Section 26): Disrobing by legal representatives and judges to reduce court formality.
• Video Recorded Examination-in-Chief (Section 27): Playing the witness's visually recorded police interview (Achieving Best Evidence / ABE interview) as their primary direct evidence.
• Pre-recorded Cross-Examination and Re-Examination (Section 28): Recording cross-examination prior to trial at a dedicated ground-rules hearing, dispensing with the need for the witness to attend the main trial.
• Intermediaries (Section 29): Appointing an independent communication specialist to assist vulnerable witnesses in understanding questions and conveying answers.
• Communication Aids (Section 30): Utilizing specialized technical or communication devices.

Mandatory Application Procedure & Judicial Duty

Under Criminal Procedure Rules (CrimPR) Part 18, applications for special measures must be submitted in writing within 14 days of committal/allocation (Magistrates' Court) or 28 days of not guilty plea (Crown Court). For child witnesses and vulnerable adults, Section 21 YJCEA 1999 imposes a statutory presumption that the court must grant primary special measures (video recorded chief and live link/Section 28) unless doing so would not elevate evidence quality or would contravene the interests of justice.

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4. Sworn vs Unsworn Evidence & Procedural Safeguards

Under Section 55 YJCEA 1999, evidence in criminal proceedings must generally be given on oath or solemn affirmation.

Rules on Unsworn Evidence:

• Witnesses Under 14: Must give unsworn evidence in all criminal proceedings (Section 55(2)(a)). They are not permitted to take an oath or affirm.
• Witnesses Aged 14 or Over: Give sworn evidence provided they possess sufficient appreciation of the solemnity of the occasion and the statutory duty to tell the truth (Section 55(2)(b)). If they lack such appreciation, their evidence is received unsworn.
• Evidentiary Weight: Unsworn evidence given under Section 55 is fully admissible and carries the same potential weight as sworn evidence. A defendant can be lawfully convicted on unsworn evidence alone, provided the tribunal of fact is satisfied beyond reasonable doubt.

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Summary of Competence, Compellability & Special Measures Rules