(Part 3 of the Act)
Eligibility and oaths and affirmations
11.2Section 71 of the Act sets out the general rule that any person is eligible to give evidence, and that any person eligible to give evidence is also compellable to give evidence. Subsequent provisions set out limited exceptions to this rule for judges, jurors and counsel in cases they are involved in, defendants and co-defendants, Sovereigns, Heads of State and judges acting in their judicial capacity, and bank officers.
11.3 This rule of general eligibility and compellability replaced the former concept of “competence” which involved an assessment of a witness’s level of intelligence and ability to understand the meaning and implications of promising to tell the truth. The Law Commission’s recommendation to abolish the competence requirement was consistent with the general policy of its proposed Evidence Code to increase the amount of relevant evidence available to the fact-finder. The Law Commission proposed that any testimony that would be unhelpful because of incoherence or insuperable communication difficulties would be ruled inadmissible under s 8, and rejected the suggestion of retaining a residual discretion for a judge to rule on a witness’s competency.
11.4A number of submitters have questioned whether infants and persons with severe mental impairment should be eligible to be a witness.
11.5We remain of the view that a rule of universal eligibility is desirable. If a person has evidence that is relevant and probative, that evidence should be available to the fact-finder through that person giving evidence as a witness. Any issues as to the quality of the evidence can be determined by s 8. This ensures that decisions on admissibility are properly focused on the quality of the evidence, rather than the quality of the witness. Other provisions in the Act (such as alternative ways of giving evidence and communication assistance) are available to enhance the quality of the witness’s evidence.
Oaths and affirmations
11.6We have been asked by the Ministry of Justice to consider the relationship between the requirement that a witness take an oath or make an affirmation before giving evidence (s 77(1) of the Act) and the requirement that a witness on a video record interview make a “promise to tell the truth” in an evidential video record (reg 8(c) of the Evidence Regulations 2007). These provisions relevantly provide:
77 Witnesses to give evidence on oath or affirmation
(1) A witness in a proceeding who is of or over the age of 12 years must take an oath or make an affirmation before giving evidence.
(2) A witness in a proceeding who is under the age of 12 years—
(a) must be informed by the Judge of the importance of telling the truth and not telling lies; and
(b) must, after being given that information, make a promise to tell the truth, before giving evidence.
(3) Evidence given by a witness to whom subsection (2) applies must be treated in the same manner as if that evidence had been given on oath.
(4) Despite subsections (1) and (2), a witness—
(a) to whom either of those subsections applies may give evidence without taking an oath, or making an affirmation, or making a promise to tell the truth, with the permission of the Judge; and
(b) if the Judge gives permission under paragraph (a), must be informed by the Judge of the importance of telling the truth and not telling lies, before the witness gives evidence; and
(c) after being given the information referred to in paragraph (b), may give evidence which must be treated in the same manner as if that evidence had been given on oath.
8 What must be on video record
A video record of an interview must show the following:
(c) subject to any contrary direction by a Judge, in the case of a witness who is of or over the age of 12 years, that person making a promise to tell the truth (in any form, provided the overall effect is a promise to tell the truth); and
(d) in the case of a witness who is under the age of 12 years,—
(i) the interviewer informing the witness of the importance of telling the truth and not telling lies; and
(ii) subject to any contrary direction by a Judge, the witness making a promise to tell the truth (in any form, provided the overall effect is a promise to tell the truth); and
11.7The issue was first mentioned by Judge Burns, who noted in obiter that:
Regulation 8(c) as it now appears is inconsistent with s.77 of the Evidence Act 2006, in so far as it envisages the possibility of a witness over the age of 12 being able to give evidence at a trial having only made a promise to tell the truth
11.8However, an evidential video record forms part of the witness’s evidence-in-chief. It will only be adduced in evidence once the witness is on the stand and has taken the oath or affirmation as per s 77 of the Act. Regulation 8(c) therefore does not envisage a witness over the age of 12 being able to give evidence after only having made a promise to tell the truth in contravention of s 77(1) (unless the judge gives permission under subs (4)). This approach has been confirmed by the Court of Appeal. We have considered whether it is desirable to amend the Regulations to require an oath or affirmation to be administered at the outset. However, there would be very real practical difficulties in requiring a person who was able to administer an oath or affirmation to be present every time the police interviewed a victim or witness via video record. We therefore recommend no amendment.