COMPETENCE AND COMPELLABILLITY

Most persons are both competent to give evidence in civil or

criminal proceedings and can be compelled to do so. But there are
exceptional classes of persons who either are not competent
witnesses (person who cannot give evidence) or who whilst
competent witness, are not compellable (person who may choose
to give evidence but cannot be required to do so.

Under s. 53(1) of Youth Justice and Criminal Evidence Act 1999 all
persons are competent to give evidence. In relation to
compellability, the general rule is that a witness who is competent
is also compellable.
At common law, a witness is competent to give evidence if
the witness sufficiently appreciates the seriousness of the
occasion and realizes that taking the oath involves more
than the duty of telling the truth in ordinary life.
R v Bellamy (1985)
Appellant was convicted of rape. Both he and victim were of low
mental ability and suffered significant mental handicap. The judge
investigated her mental status by questioning appellants social
workers and the appellant and her belief in God, and ruled that
the victim was competent to give evidence, but that given her
lack of belief in God she should not take an oath but make an
affirmation. The defendant appealed on the ground that the judge
was not entitled to cause the victim to affirm and that the fact
that the key evidence in the trial was given in this unauthorized
manner vitiated his conviction. Held:(CA) Dismissed the Appeal .
The judge was correct in investigating the competence of the
complainant as a witness but should not have investigated her
belief in God. The fact that the complainant had realized that she
could be put away if she told a lie it was thus evident that she

did realize that the taking the oath involved more than the duty of
telling the truth in ordinary life. Since she had no objection to
being sworn, he should have allowed her to be sworn. The
irregularity in this aspect of the trial, that the witness had affirmed
rather than taking the oath, had not been of a material nature and
could not have affected either the complainants evidence pr the
jurys appreciation of it.
-

Bellamy governs competence of witnesses in civil cases too.

Except where a person under 18 doesnt understand the nature of
the oath, the child may be competent to give unsworn evidence in
civil proceeding sunder s. 96 of Childrens Act 1989.
Test is competence is laid in s. 53(3) of Youth Justice and Criminal
Evidence Act 1999 , under which a person is not competent to
give evidence in criminal proceedings if the person cannot
understand questions put to him as a witness and give answers to
them which can be understood. A witness under 14 years of age
cannot give sworn statement but may give unsworn evidence in
criminal proceedings if he passes the s. 53 (3) test. (See section
55 and s. 56 of 1999 Act))

Can the accused testify for the prosecution? Under s. 53(4) of

the Youth Justice and Criminal Evidence Act 1999 the accused is not
a competent prosecution witness. If A and B are charge in the same
proceedings, neither one of them are a competent prosecution
witness. But by virtue of s. 53 (5) B is competent (and may be
compelled) to give evidence for the prosecution against A, if B is no
longer liable to be convicted. This will be the case if B pleads guilty,
if B has been acquitted of the charge or charges or if the proceedings
against B have been discontinued. B may be compelled to give
evidence for the prosecution against A if A and B are being tried
separately.
The prosecution may compel the
partner to give evidence against him.
R v Pearce (2001)

accuseds

unmarried

Defendant Pearce was convicted of murder of his brother. The

judge allowed the prosecution to treat both the defendants
daughter and Loveina Pearce (the women with whom he had lived
for 19 years and had 3 children), as hostile witnesses. The
defendant appealed against conviction, arguing that if they had
been married his partner would not have been a compellable
witness, that the reason for such a rule was to protect family and
relationships and that modern concept of family, and Art 8 of the
European Convention on Human Rights, required that his partner
should not have been a compellable witness. Held: CA dismissed
the Appeal. The relevant provision relating to the compellability of
a wife or husband were found in S. 80(1) of PACE. The section
referred to the wife or husband of a person charged. Loveina
Pearce was not married to the defendant, thus do not extend to
cover the relationship in question. The provision of Art 8 of the
Convention did not require that the co-habitee of a defendant,
should not be compelled to give evidence.
-In general where a witness is competent to give evidence in
criminal (or civil) proceedings the witness is also compellable,
i.e. the court can require the witness to give evidence. The
compellability of the accuseds spouse or civil partner in
criminal proceedings is governed by s. 80 of PACE. Under this
section the accuseds spouse or civil partner is compellable to
give evidence on behalf of the accused, but is not compellable
to give evidence on behalf of the prosecution or a co-accused
unless the offence with which the accused is charged is a
specific offence (for e.g. if it involved an assault on the spouse
or a person under the age of 16 or if it is a sexual offence
alleged to have been committed in respect of a person under
the age of 16). The spouse or civil partner of the accused is
not compellable by any party to the proceedings if the spouse
or civil partner is charged with an offence in the proceedings.
Where former spouse or civil partners have divorced, that
person is compellable by any party to the proceedings just as
though they had never been married or as though civil
partnership never existed.

 In criminal proceedings the test of competence is whether a

person can understand questions put to him as a witness
and can give answers to them which can be understood (S
53 (3) of Youth Justice and Criminal Evidence Act 1999). R v
MacPherson 2005
This case involved conviction for indecent assault of a four and half
year old child. At the trial defendant submitted that the child was
not a competent witness. The judge ruled that the child was a
competent witness, having watched her video recorded interview
and having seen the child himself, accompanied by both counsels,
and asked her questions of general nature. The defendant appealed
on the grounds that the judge erred in determining whether or not
the child was competent on the basis of video-recorded interview
alone. Held: Appeal dismissed. Ca held that the judge based his
decision not only on the recorded interview, but had interviewed
her himself. In this case the child had understood the questions and
had given intelligent answers so had passed s. in s. 53(3) of Youth
and criminal justice Act 1999 ( under which a person is not
competent to give evidence in criminal proceedings if the person
cannot understand questions put to him as a witness and give
answers to them which can be understood).
Where the issue of competence of witness is raised by any
party or court, s. 54 provides that the party who called the
witness bears the burden of proving on balance of
probabilities that the witness is competent.
A witness who cannot totally understand questions or who
cannot give answers that can be totally understood may
still be competent to give evidence in criminal proceedings.
R v Sed (2004)
This case involved an allegation of rape made by an 81 year old
woman suffering from Alzheimers disease. A video taped interview
was conducted by the police during which allegation was made.

Two psychiatrists gave evidence that

the complainant was
suffering moderate to severe form of the disease at the time of the
alleged rape, interview and thereafter, and that she was not fit to
give evidence in court due to this condition. Prior to trail the judge
heard an application from the prosecution that the complainants
evidence should be put to the jury via the medium of the videotaped interview. Judge admitted the complainants evidence in this
form and that the evidence satisfied the test f competence in s. 53
of Youth and criminal justice Act 1999. Held: CA dismissed the
appeal. Judge had not found that the complainant had understood
all the questions put to her or that all her answers were
understandable, but had found that her understanding of the
questions ad intelligibility of her answers were was sufficient to
enable a jury to evaluate her evidence. Section. 53 did not require
100 percent understanding of questions or 100 per cent
intelligibility of the answers. In determining competence was
required to take into account the overall performance of the
witness, it being for the jury to determine the reliability and
cogency of the evidence.
Sworn and Unsworn evidence
-Section 52(a) of Youth Justice and Criminal Evidence Act 1999
provides that a witness under the age of 14 may not give sworn
evidence in criminal proceedings.
-A witness aged 14 or more may not give sworn evidence in
criminal proceedings if the witness sufficiently appreciate the
solemnity of the occasion and the particular responsibility of
telling the truth which taking an oath involves (s. 52(b))
-S. 55 provides that proceedings to determine competence of a
witness will take place in the absence of jury and that expert
evidence may be received for the purpose of determining
whether a witness may be sworn.
Where a person is competent to give evidence in criminal
proceedings under s. 53(3) but cannot give sworn evidence due
to the operation of s. 55, s. 56 provides that such witness may
give unsworn evidence in criminal proceedings if he passes the s.
53 (3) test.

 Under s. 96 of the Children Act 1989, a child is competent

to give unsworn evidence in civil proceedings if the child
understands that it is his duty to speak the truth and has
sufficient understanding to justify his evidence being
heard.
C v C (2001)
The case concerned the breach of a non-molestation order under
the Family Law Act 1996. Under the order, the appellant was not
to harass or pester his wife, from whom he was separated, by
making allegations about her sexual activities. When the
appellants ten-year-old daughter was collected by her mother
(the appellants wife) following a visit with the appellant, the
appellants daughter told her mother that the appellant had said
that she (the mother) was a prostitute who slept with men for
money. The appellant was arrested, bailed and was later
sentenced to eight weeks imprisonment. Held: The 10 year old
was competent to give evidence.