Answer to Question #217305 in English for Magree

Question

Which statement is correct about the evidence of an accomplice? 2.which statement is correct about regarding the onus of proof in criminal and civil matters?

Answer 1

At a trial, the judge or the magistrates will decide if a witness is competent. An incompetent witness comes within one of the exceptions set out above.

The exception under Section 53(4) of the YJCEA 1999 will be easy to establish.

The exception under Section 53(3) of the YJCEA 1999 is entirely witnessing specific, and there should be no presumptions or preconceptions. Provided the witness can understand the questions put to them (by both parties) and provide coherent answers, they are competent. This assessment of competency should, where applicable, consider techniques or measures that can be used to assist the witness to give their evidence, for example, the use of a Registered Intermediary appointed under Section 29 of the YJCEA 1999.

The Registered Intermediary must not be asked to comment on credibility or competence; their role is to assist the witness to give evidence to the best of their ability.

In R v B [2010] EWCA Crim 4, on the subject of competency, the Court of Appeal stated that:

“... the competency test is not failed because the forensic techniques of the advocate (in particular about cross-examination) or the processes of the court (for example, about the patient expenditure of time) have to be adapted to enable the witness to give the best evidence of which he or she is capable.”

The Court of Appeal confirmed this approach in the case of F [2013] 1 WLR 2143. There, the Court held that the judge’s ruling was wrong in law as the exercise carried out by the judge was not a fair test of the witness' competency. The judge had substituted the interpreter's difficulties in communicating for the test of whether the witness could understand questions and give intelligible answers.

In the case of R v. Watts [2010] EWCA Crim 1824, it was held by the Court of Appeal that the competency test is satisfied if the witness can understand the question put to him (or her) and give answers to them which can be understood. Furthermore, those who are competent to give evidence should be assisted to do so, for example, with the assistance of intermediaries.

The Court of Appeal in the case of R v. Sed [2004] 1 WLR 3218 held that the test of competence set out in Section 53 did not require a witness to understand all the questions put to her and for all her answers to be understood. It was a matter for the judge to determine competence, taking into account the effect of the witness's performance as a whole and whether there was a common and comprehensible thread in her responses to the questions.