Below you will find the situation regarding the binding nature of spouses or life partners in criminal proceedings. A witness is competent if he or she can lawfully be called to testify. This principle is set out in section 53 (1) of the Juvenile Justice and Criminal Evidence Act 1999 (YJCEA 1999): „At all stages of criminal proceedings, every person (regardless of age) shall be qualified to testify.” The key to a proper oath or statement is that the witness understands what he or she is swearing. As a general rule, this is not a problem with the exception in the treatment of children and witnesses with low mental capacity, as will be discussed below. The first step lowers the bar set by Marquard and only requires them to be able to communicate. The second step is a substitute for the need to take an oath or take out insurance. If the child promises to tell the truth, it is as good as an oath (see 16.1(8)). However, in the challenge of the second stage, the challenger should not ask questions about the „nature” or „meaning” of what it means to tell the truth. Section 80 of the Police and Criminal Evidence Act 1984 is the statutory provision governing the jurisdiction and enforceability of spouses and partners in criminal proceedings. The most common way to provide evidence is for a witness to testify. A witness is considered competent if he or she can be summoned to appear as a witness by a party.
All persons, regardless of age, are considered capable of testifying at any stage of the criminal proceedings, with two exceptions: However, if the child does not understand the meaning of the oath, he or she may still make an unsworn statement under Article 16 (3) if he or she promises to tell the truth. There is an additional test that must be applied to accept a promise to tell the truth. The individual must understand what it means to „promise” and understand what it means to „tell the truth.” The truth test is neither accurate nor demanding. It is mainly the child who „commits” to telling the truth as he understands it in his daily social behavior. The difference with the criterion for determining whether the child understands the oath is that the child is not obliged to understand the solemnity of the judgment and does not have to understand his duty beyond the everyday meaning. The jurisdiction of a witness is whether a witness can lawfully testify and testify. Compulsive witness refers to the power to compel a competent witness to testify, even if it is against his or her will. When a party asks a person to testify, they issue a subpoena so that the person can appear in court on a specific day. A person to whom a summons to appear must appear before the court on the specified date and, if he does not appear, the court may issue a warrant of arrest against him. If a person who receives a subpoena believes that he or she is not a convincing witness, he or she must appear in court and report it to the court.
Reserved judgmentsWhat is a reserved judgment? A court may reserve a judgment by issuing its decision in writing at a later date after the trial or hearing (as opposed to an ex tempore judgment, which is rendered orally by the judge immediately after the trial or hearing). At the end of the hearing, the judge must consider the offence for which the accused is charged, the type of evidence the person is expected to present and the possible availability of other evidence. It must also consider the relationship between the person and the defendant and determine whether testimony would compel the person to disclose confidential information. An accused who wishes to testify against a co-accused (for example, to obtain a reduction of sentence) can only do so if he or she is no longer a defendant in the case, for example by pleading guilty or dropping charges against him. In the case of children who have reached the age of 14, the party requesting that the witness take the oath must, after weighing the probabilities, satisfy the court that the child has reached the age of 14 and has a sufficient understanding of the relevant factors. Section 16(1) of the CEA, introduced in 1987, amended most of the rules applicable to children and persons with low mental capacity. Many of the common law rules remain. Prosecutors should also recognize that the competence of a witness is a different matter than the mental capacity of a witness.
Further information can be found in the chapter entitled „Guidelines for the prosecution of crimes against older persons and victims and witnesses with mental health and/or learning disabilities”. In R. v. Marquard (1993), the Supreme Court considered the case of an unsworn child and whether he was capable of „communicating” in accordance with the standard set out in article 16, paragraph 1. The Court held that the questioning should relate only to the witness`s ability to communicate and not to his ability to observe and remember. Nevertheless, it is important „to generally consider whether the witness is able to perceive events, remember events and communicate events to the court”, but it is not necessary to know whether the child remembers anything specific to the case. L`Heureux-Dubé, for his part, opposed a special standard for children, which would be the dominant opinion with the imminent introduction of section 16.1. The Canada Evidence Act added other exceptions that allow the spouse to be competent and persuasive to the Crown and the co-defendant:[2] A jury is a competent witness. [4] A juror cannot provide evidence for the considerations, emotions or decisions of either jury judge.
[5] A witness who is not mandatory can still testify if he or she wishes, but he or she simply cannot be compelled to do so. To communicate, the witness must be able to understand and answer the questions, and he must have a moral responsibility to tell the truth. To testify at trial, a witness must be considered capable of doing so. A prosecutor who concludes at the examination stage that a witness is not competent under section 53(3) of the YJCEA 1999 must ensure that he or she has thoroughly examined the case. Such an important and rare decision should be discussed and approved by a district attorney or higher. The potential impact on the witness in the current and future proceedings should not be underestimated. From: Mandatory Witness in the Dictionary of Law » 16(1) If a proposed witness is a person under fourteen years of age or a person whose mental capacity is in doubt, the court shall, before allowing the person to testify, conduct an examination to determine (a) whether the person understands the nature of an oath or statutory declaration; and (b) whether the person is able to provide evidence.