Decide compellability: ordinary witnesses, accused, co-accused and spouse

Compellability: must the witness give evidence? CompellabilityGlossary termCompellability is the legal ability to require attendance and evidence. An ordinary competent witness is generally compellable, subject to recognised exceptions and protection against particular questions. A witness summons is a court requirement, not simply a solicitor's invitation. In the Crown Court the material-evidence and interests-of-justice requirements govern a summons under Criminal Procedure (Attendance of Witnesses) Act 1965, s 2; the magistrates' court has its statutory power under Magistrates' Courts Act 1980, s 97. CrimPR Part 17 governs applications, service and the available challenge. Importance of the evidence does not remove an exception to compellability.

Attendance and answering are distinct. A witness should not ignore a summons because one proposed question may be privileged. The appropriate course is to raise the specific objection and obtain the court's ruling. Compellability does not turn an inadmissible document into admissible evidence or strip a communication of legal professional privilege. The privilege section below explains that distinction. CrimPR Part 17; Criminal Evidence Act 1898, s 1; R v Special Commissioner, ex p Morgan Grenfell [2002] UKHL 21.

The accused cannot be called for the prosecution while still charged. Under YJCEA s 53(4) a person charged in the proceedings is not competent to give prosecution evidence in those proceedings. This applies to a sole accused and to a jointly charged accused. The prosecution cannot avoid the rule by describing a defendant as a useful eyewitness. The statutory exclusion is based on status, not an assessment that the person is untruthful.

Defence evidence is the accused's choice. An accused who satisfies the communication test is competent to give evidence for the defence, but under Criminal Evidence Act 1898, s 1(1) may be called only on their own application. Neither the prosecution, the judge nor another defendant can compel the accused to enter the witness box. Once the accused chooses to testify, the evidence is subject to proper questioning: s 1(2) permits cross-examination even where an answer tends to incriminate the accused in the offence charged, subject to the applicable evidential rules. Voluntary entry into the witness box is not a right to give an unchallengeable account.

Silence has its own safeguards. Non-compellability does not mean that a failure to give evidence can never have procedural consequences. Any adverse inference must satisfy the separate trial-silence rules, including Criminal Justice and Public Order Act 1994, ss 35 and 38, and cannot itself replace proof of guilt. The detail belongs with Confessions and Silence and Trial Procedure. Do not turn the possibility of a lawful inference into a power to force testimony.

A co-accused's status must be checked at the relevant time. Another jointly charged defendant who remains liable to conviction is likewise not a prosecution witness and cannot be compelled to testify for a co-defendant. Under YJCEA s 53(5), however, the prosecution exclusion no longer applies to a person who is not, or is no longer, liable to conviction of any offence in those proceedings, whether because of a guilty plea or otherwise. Check the actual procedural result: a guilty plea to one count does not remove liability on a remaining contested count. After an acquittal or a separate trial arrangement, ask whether the person is still charged in these proceedings; do not assume that the original joint-charge label lasts for every purpose. Any remaining privilege or separate statutory restriction must still be considered.

Current spouses and civil partners: competence is not the problem. A competent spouse or civil partner who is not excluded as an accused may testify voluntarily. The special restriction concerns compellability, under Police and Criminal Evidence Act 1984 (PACE), s 80. Identify the current legal relationship, who wishes to call the witness, which offence the evidence concerns, and whether the witness is also charged. An unmarried partner does not acquire this restriction through length of cohabitation. A former spouse or former civil partner is treated for compellability as though the relationship had never existed; living apart without its legal termination is not the same thing. PACE s 80(2)–(5A).

Called for their own spouse or civil partner's defence. The witness is compellable under s 80(2), subject to the charged-witness exception. The offence need not fall within the specified-offence categories. This is different from the prosecution's position.

Called for the prosecution or another accused. Under s 80(2A), compellability exists only in respect of a specified offence. For another accused's defence, the specified offence must be one with which that other accused is charged. For the prosecution, it may be a specified offence with which any person in the proceedings is charged. This is not unrestricted permission to compel answers on every count merely because one count qualifies.

What is a specified offence? Under s 80(3) it is an offence involving assault on, injury or a threat of injury to the witness-spouse or civil partner, or to someone who was under 16 at the material time; a sexual offence alleged against a person under that age; or the listed forms of attempting, conspiring, aiding, abetting, counselling, procuring or inciting commission of such an offence. “Sexual offence” has the statutory meaning in s 80(7), including the relevant Sexual Offences Act 2003 offences, Protection of Children Act 1978 offences and specified sexual-exploitation trafficking. Do not substitute the special-measures age of 18 for this under-16 test. Nor is every offence labelled domestic abuse automatically a specified offence: apply the actual s 80 definition.

The charged-spouse exception comes first. Under s 80(4) a witness who is themselves charged in the proceedings is not made compellable by the spouse provisions. Under s 80(4A) this stops applying when the person is no longer liable to conviction of any offence in those proceedings. The prosecution competence exclusion in YJCEA s 53(4) must also be applied. Marriage cannot be used to compel a co-accused into the witness box. Separately, PACE s 80A prohibits prosecution comment on the failure of an accused's spouse or civil partner to give evidence. Do not transfer the accused's own silence rules to that situation.

Reassess an actual change in charge or marital status. Support changes how evidence is received, not the answer to every box. Authorities: YJCEA sections 53–54; Criminal Evidence Act 1898 section 1; PACE section 80.