A witness is competent if he or she can lawfully be called to give evidence. The principle is set out in 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”.
A person is not competent to give evidence in criminal proceedings if it appears to the Court that they are unable to understand questions put to them as a witness and give answers to them which can be understood [Section 53(3) of the YJCEA 1999].
A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings) (Section 53 (4) of the YJCEA 1999). A co-accused can only give evidence for the prosecution once he or she ceases to be a co-accused (for example, following a guilty plea).
The exception under Section 53(3) of the YJCEA 1999 is entirely witness specific and there should be no presumptions or preconceptions. Provided the witness can understand the questions put to him or her (by both parties) and can also provide coherent answers, then he or she is competent. This assessment of competency should, where applicable, take into account techniques or measures that can be used to assist the witness to give his or her evidence, for example the use of a Registered Intermediary appointed under Section 29 of the YJCEA 1999.
Questions of competency must be decided before the witness is sworn or starts to give evidence and ideally prior to the start of the trial. In the case of a prosecution witness, it was held in the case of Yacoob (1981) 72 Cr App R 313 that the question should be raised and decided at the beginning of the trial.
However, issues of competency may only become apparent after the witness has begun to give evidence or during cross-examination. This may be particularly so for child witnesses, whose examination-in-chief has been given in a pre-recorded video interview admitted under Section 27 YJCEA 1999, where the child witness might subsequently be unable to provide intelligible answers in cross examination.
The Youth Justice and Criminal Evidence Act 1999 (YJCEA) introduced a range of measures that can be used to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses. The measures are collectively known as “special measures”.
Vulnerable witnesses are defined by section 16 YJCEA as:
All child witnesses (under 18 – as amended by section 98(2) of the Coroners Act 2009 to substitute 17 for 18); and
Any witness whose quality of evidence is likely to be diminished because they:
- are suffering from a mental disorder (as defined by section 1(2) of the Mental Health Act 1983 and amended into a single definition by section 1(2) of the Mental Health Act 2007 – see the Mental Health legal guidance);
- have a significant impairment of intelligence and social functioning; or
- have a physical disability or are suffering from a physical disorder.
Intimidated witnesses are defined by section 17 YJCEA as those suffering from fear or distress in relation to testifying in the case. Complainants in sexual offences are defined by section 17(4) as automatically falling into this category unless they wish to opt out. Witnesses to certain offences involving guns and knives are similarly defined as automatically falling into this category unless they wish to opt out.
Section 101 of the Coroners and Justice Act 2009 inserted a new section 22A into the YJCEA making special provision for adult complainants in sexual offence trials in the Crown Court. The section provides, on application by a party to the proceedings, for the automatic admissibility of a visual recorded statement as evidence in chief under section 27 of the YJCEA, unless this would not be in the interests of justice or would not maximise the quality of the complainant’s evidence.
Being eligible for special measures does not mean that the court will automatically grant them. The court has to satisfy itself that the special measure or combination of special measures is likely to maximise the quality of the witness’s evidence before granting an application. The special measures available to the Court are as follows:
- screens (available for vulnerable and intimidated witnesses): screens may be made available to shield the witness from the defendant, (s23 YJCEA);
- live link (available for vulnerable and intimidated witnesses): a live link enables the witness to give evidence during the trial from outside the court through a visual link to the courtroom. The witness may be accommodated either within the court building or in a suitable location outside the court, (s24 YJCEA);
- evidence given in private (available for some vulnerable and intimidated witnesses): exclusion from the court of members of the public and the press (except for one named person to represent the press) in cases involving sexual offences or intimidation by someone other than the accused, (s25 YJCEA);
- removal of wigs and gowns by judges and barristers (available for vulnerable and intimidated witnesses at the Crown Court), (s26 YJCEA);
- visual recorded interview (available for vulnerable and intimidated witnesses): a visual recorded interview with a vulnerable or intimidated witness before the trial may be admitted by the court as the witness’s evidence-in-chief, for adult complainants in sexual offence trials in the Crown Court. A visual recorded interview will be automatically admissible, upon application, unless this would not be in the interests of justice or would not maximise the quality of the complainant’s evidence, (s27 YJCEA). (Section 103 of the Coroners and Justice Act 2009 relaxes the restrictions on a witness giving additional evidence in chief after the witness’s visual recorded interview has been admitted);
- pre-trial visual recorded cross-examination or re-examination a visual recorded examination of the witness recorded at an earlier point in the process than the trial may be admitted by the court as the witness’s cross-examination and re-examination evidence in the Crown Court. This can only be applied for where there has been a s27 direction for a visual recorded interview to be admitted as evidence and when a victim or a witness meets the vulnerable criteria. A visual recorded examination will be automatically admissible, upon application, unless this would not be in the interests of justice or would not maximise the quality of the complainant’s evidence, (s28 YJCEA).
- examination of the witness through an intermediary (only available for vulnerable witnesses): an intermediary may be appointed by the court to assist the witness to give their evidence at court. They can also provide communication assistance in the investigation stage – approval for admission of evidence so taken is then sought retrospectively. The intermediary is allowed to explain questions or answers so far as is necessary to enable them to be understood by the witness or the questioner but without changing the substance of the evidence, (s29 YJCEA);
- aids to communication (only available for vulnerable witnesses): aids to communication may be permitted to enable a witness to give best evidence whether through a communicator or interpreter, or through a communication aid or technique, provided that the communication can be independently verified and understood by the court, (s30 YJCEA).