Competence and Compellability

80(5) Any ex spouse will be treated as anyone else if they are divorced.

80(8) The Prosecution cannot make comment if spouse does not give evidence.

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All persons are competent to give evidence. S. 53(3) of the Youth Justice and Criminal Evidence Act 1999 is now the test for competence.

All persons who are competent are compellable, with the exceptions.

Everyone is competent if s/he is legally able to give evidence to a court (ie. If they can, and if the court deems it to be relevant evidence.)

The two major areas that there are trouble with are spouses and children.

For spouses, look at Pace, s. 80.

CHILDREN.

Area's that are of main concern:

: S. 53(3) of the Youth Justice and Criminal Evidence Act 1999

: s. 96(2)(a) & (b) of the Children's Act 1989

: s. 33A of the Criminal Justice Act 1988

s. 53 being the newest. However, s. 96 of the 89 act provides the clearest, stating that (1) he understands his duty to speak the truth and (2) has sufficient understanding to justify his evidence being heard. S. 53(3) will be given out in the exam. Children are persons under the age of 14. They may give evidence sworn or unsworn.

Tests of competence:

No child need be corroborated, and a jury may now convict on that alone.

G v DPP [1997] 2 Cr.App.R 78, DC

Two children were examined by two child psychiatrists to see if they were competent. This was said to be a complete waste of time and money. The judge is to ask questions in front of the accused, but not necessarily in front of the jury. This is a cognitive test to see if they understand what they are there for, and if they understand the difference between the truth and a lie. (They do not have to believe in God.)

DPP v. M. [1997] 2 All ER 748

A court may not stop any competent child from giving evidence.

R v Hampshire [1995] 2All ER 1019

The judge is to ask questions in front of the accused, but not necessarily in front of the jury. May also view video evidence of the child being interviewed, under the 1988 Act to consider competence. The judge is no longer bound to investigate a child's competence, but it is urged that s/he give a gentle reminder to tell the truth, this may be done in front of jury. Jury is not to consider competence.

Vulnerable Adults.

Must be able to give intelligible answers, if they can, they are to be treated as "normal" adults. This can also encompass drunkenness or insanity. Question of competence is for the trial judge.

R v. Bellamy[1986] 82 Cr App R 222

A person suffering mental disability may give evidence that is sworn, even if she does not believe in God, so long as she understands the solemnity and that she cannot tell lies. She must be competent to give evidence.