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VITAL VOICES - Helping Vulnerable Witnesses Give Evidence
Chapter 7: The Competence Test
7.1 This chapter looks at issues related to the question of whether a witness is "competent", in the sense of whether the person can understand and communicate what he or she has seen or heard, and understand the duty to speak the truth. There is a general rule in law that someone who cannot do so should not give evidence. There are, however, subtle links between the question of whether a witness should be treated as "vulnerable" and so given special treatment when they give evidence, and the question of whether they are a competent witness. A person with a mental disorder or a learning disability may be made so anxious by the thought of going to court and giving evidence in the normal way that they become ill, or suffer a panic attack, or become confused and disorientated by the unfamiliarity of the surroundings. If required to give evidence in the normal way they might simply be unable to do so. The person would therefore not be a competent witness in that context.
7.2 If however, changes were made in the way they were allowed to give evidence, or they had time to familiarise themselves with the surroundings and be helped to understand what will happen when they go to court, they may be able to cope with the situation and answer questions. Their level of competence may vary according to the circumstances, and in effect the help that special measures give them can be said to be increasing their level of competence.
7.3 The question of someone's competence must therefore be looked at in the light of what can be done to assist them to give evidence, not as a separate question. It might also be asked whether there is any real need for someone to be judged as being "competent" before being allowed to give evidence. This question has already been looked at in Scotland, although only in relation to children, in a number of contexts.
Children
7.4 There is no rule to the effect that a child below a certain age cannot give evidence, but the judge must be satisfied that the child is competent before the child is allowed to give evidence. The judge must make a preliminary assessment of the child's level of understanding and admonish the child to tell the truth. This process has become known as the "competence test". It applies in both criminal and civil proceedings.
7.5 Following concerns which had been expressed regarding both the effectiveness of the test and the potential which it may have for causing distress to children, the Scottish Law Commission in their 1990 Report on the Evidence of Children and Other Potentially Vulnerable Witnesses (Scot.Law.Com No 125) considered the question of the test, but made no formal recommendations.
7.6 The question of whether a competence test required to be satisfied before hearsay evidence could be admitted in civil proceedings was recently examined in detail by the Court of Session in the case of T v T 37. The five judges in the case looked at the question of the admissibility of hearsay evidence in civil cases, and clarified the law. In civil cases there is a general rule that hearsay evidence is admissible. In this case the court decided that it was still admissible even though the person who made the original statement (i.e. in that case a young child) would not have been a competent witness. There was therefore no need for the court to ask whether the child had been able to understand the difference between truth and lies, either at the time of making the statement, or at the time the evidence of the statement was being given. The decision would apply equally to hearsay evidence of any other witness whose competence night be in doubt, e.g. someone with a mental illness or learning disability.
7.7 Although this case was very helpful in clarifying the law on hearsay evidence in civil cases, and should make it easier for that type of evidence to be used in more cases, it did not affect the rule about establishing the competence of a child who actually gives evidence in court in the normal way. The test remains in place and continues to be administered in both civil and criminal cases where children give evidence directly. But the fact that the test can, in effect, be avoided by leading hearsay instead of direct evidence may raise doubts as to its value in the first place.
7.8 In her report Kathleen Murray recommended the abolition of the competence test, so that all children would be allowed to give evidence, however young. 38 The child's age and level of maturity and understanding would then simply be factors to be taken account of in assessing the reliability of their evidence and the weight to be given to it. Mrs Murray's recommendation was based on observation of how the test was given in a number of cases. She reported that many of the trial judges seemed to be uncomfortable with the test, and there was no uniform approach or criteria applied. Two thirds of the lawyers she interviewed considered the procedure to be unsatisfactory.
7.9 In July 1997 the Scottish Courts Administration issued a Consultation Paper entitled "Further Measures To Support Child Witnesses In Civil And Criminal Proceedings". This sought views on whether the competence test should be abolished for child witnesses. In accordance with standard practice at that time, the paper was given a fairly limited circulation, in the first instance to approximately 40 recipients who were seen as having a direct interest in the issue of child witnesses, with about 30 further copies of the paper being sent out in response to specific requests. Twenty one responses were received.
7.10 Among those who responded at that time there was a general consensus that the issue of child witnesses was both complex and problematic. There was unanimity that the issue of competence should be dealt with in the same way in both civil and criminal proceedings, and 13 out of the 21 who responded were in favour of the competence test being abolished.
7.11 The abolition of the test would mean that there would be no need for the sheriff or judge to carry out any preliminary questioning to see if the child understood the difference between truth and lies and the duty to tell the truth, and then make a formal decision that the child was competent. If it was decided to call the child to give evidence, whether in the court itself, or by means of a live television link, the child would simply be questioned about the events witnessed, and the judge and/or jury would take account of the age and apparent level of understanding of the child in deciding what weight to give their evidence.
Adults
7.12 In relation to adults, the law assumes in the first instance that an adult will be capable of understanding questions and giving intelligible answers, and will appreciate the duty to tell the truth. The question of competence to give evidence can, however, still arise, either during the course of the proceedings, or it may be noted at a pre-trial interview or precognition. If an objection is made to a witness on the grounds that there is some doubt about their ability to understand questions or give intelligible answers, it is up to the judge to decide whether they are competent. In order to do so, the judge can hear evidence, which can involve questioning the witness himself, and might include expert evidence on the witness's mental state or capacity. It is not absolutely necessary for a witness to understand the oath before he or she gives evidence, but there would still be a requirement for the judge to admonish the witness to tell the truth. In effect there will be a test similar to the test for the competence of child witnesses, which some witnesses will not pass. It might, however, be argued that the need to meet some particular level of understanding of abstract concepts such as "the truth" and the duty to tell it, is as much of an artificial and unnecessary hurdle for people with mental impairment as it is for children.
7.13 In practice, concerns about whether a potential witness would be judged "competent" may lead to a decision being made not to call them at all. ENABLE, the national voluntary organisation working for people with learning disabilities, have told us that in their view this often happens with people who have learning disabilities, especially those who have been the victims of, or have witnessed, abuse of some kind. Assumptions may be made about their ability to "pass" such a competence test, so that they are ruled out as potential witnesses from the start, when in reality they may be able, with more preparation and support and the use of special measures, to describe real events and circumstances quite clearly. Similar assumptions might be being made about people with other kinds of mental disorder or impairment.
7.14 The rationale of any competence test would seem to be to ensure that only evidence which can be assumed to have a certain inherent worth or reliability is led in court. Assessing the value and reliability of evidence is, however, an essential part of the process of deciding the facts of the case. Interposing an initial test of competence to give evidence may mean that those whose job it is to decide the facts are simply deprived of information which might very well be relevant, and whose value they would be perfectly well able to judge. Doing away with any requirement for the competence of a witness to be tested before being allowed to give evidence would mean that whatever information can be obtained from the witness could simply be assessed for what it is worth, in the light of the whole circumstances in which it is given. Evidence might still be led about the nature and extent of the witness's mental impairment or disorder, but it would be for the judge or jury to weigh that evidence, along with the evidence the witness had actually given, and decide whether the evidence given by the witness was reliable or credible. If the witness had not been able to understand or take the oath, that would simply be another factor to be considered.
7.15 The responses to the earlier consultation would seem to indicate strong support for the abolition of the test as regards children. The question of the usefulness of the competence test for other witnesses has not been explored up to now in any detail, and we think that it deserves to be considered as well. We would, therefore, welcome further views on whether the competence test should be retained, abolished or modified, for children only, or for all witnesses, and about how courts should deal with the giving of evidence by witnesses who may have mental disorder or impairment.
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