Competency and compatibility of witnesses, and digital evidence

Competency and compatibility of witnesses

All witnesses are competent (unless proved otherwise), and compellable, unless in excludes category. NB: position of the accused.

Compellable

They can be called as witness but cannot be required to give evidence.

The accused

If an accused person does not give evidence, his failure to do so, may be commented on by the court, the prosecutor or counsel for a co-accused.

An accused person is a competent witness for a co-accused but is not compellable.

Are the relatives of the accused compellable witnesses?

Relatives of the accused are competent and compellable witnesses for either prosecution or defence.

Is the spouse of the accused a compellable witness

The spouse of the accused is a compellable witness for the defence, but not for the prosecution - unless they are the alleged victim of the crime.

Socious criminis

Where the Crown calls a witness in order that he can admit his part in the criminal actions charged against another person(s), he acquires immunity from prosecution.

Gubinas v HM Advocate [2017] HCJAC 59 

Juries’ role in interpreting video evidence. Gubinas was identified via CCTV footage. 

The court held that juries may independently assess video evidence without requiring expert validation. 

Baseline

All witnesses are competent unless proved not to be.

Competency Test

1. The evidence of any person called a witness in criminal or civil proceedings is not inadmissible solely because the witness does not understand -

   a) The nature of the duty of a witness to give truthful evidence or

   b) the difference between truth and lies.

2. Accordingly, the court must not, at any time before the witness gives evidence, take any step intended to establish whether the witness understands those matters

has been ABOLISHED