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VITAL VOICES: Helping Vulnerable Witnesses Give Evidence
Report on the Analysis of Responses to the Consultation

SECTION SEVEN: THE COMPETENCE TEST

Question 25a: Should the competence test be retained, modified or abolished (a) for children only and (b) for all witnesses?

(a) Children

165. As the data in the above table indicate, a quarter of Consultees (n=19) did not specifically address this question. Of those that did (n=57), 60% (n=34) were in favour of abolishing the competence test for children; 21% (n=12) advocated modification while 16% (n=9) were in favour of retention of the test. Three per cent (n=2) of Consultees did not specify a view.

(i) Abolition

166. Abolition of the competence test for children was favoured by 60% (n=34) of the Consultees that addressed this question. Overall, they favoured abolition on the basis that:

• The current procedures are unsatisfactory ⁷⁷¹
• Retention of the test is another "instance of inequitable justice by geography" as the test has been abolished for all witnesses in England and Wales ⁷⁷²
• The competency test applied to child witnesses could be viewed as discriminatory and may amount to a breach of Article 14 of the European Convention on Human Rights since adult witnesses are not presumed incompetent in the same way ⁷⁷³
• Giving evidence can be a distressing enough prospect for children without being required to undergo a competency test ⁷⁷⁴
• The test could leave certain groups open to the possibility of abuse without recourse to justice ⁷⁷⁵
• Assessment of a persons' competence cannot be properly tested by a judge sitting alone ⁷⁷⁶
• There appears to be no clear cut rules or guidelines as to how the test should be applied. ⁷⁷⁷ This lack of guidelines and rules can result in inconsistency of application ⁷⁷⁸ and potentially discriminatory outcomes ⁷⁷⁹ with judges determining their own criteria ⁷⁸⁰ or formulating their own questions ⁷⁸¹
• The test does not offer any advantage to the evidential process ⁷⁸²
• On the basis of the judgment in T v T 2000 SLT 1442 which held that, when concerned with hearsay evidence, children's evidence is valuable for courts and additional barriers to the hearing of this evidence should not be in place ⁷⁸³
• The test infers that the child's evidence may be unsatisfactory before they have an opportunity to give said evidence ⁷⁸⁴
• Witness competence should not be a bar to admission of evidence ⁷⁸⁵

167. Some of the Consultees in favour of abolition of the test advanced a number of alternatives:

• The test should be replaced by interpretation as to the weight such evidence should carry ⁷⁸⁶ and whether it is reliable and credible ⁷⁸⁷, after all the evidence has been heard ⁷⁸⁸ and in the context of the other testimony ⁷⁸⁹
  • The age, maturity and understanding of child witnesses would be factors to be taken into account in assessing the reliability of their evidence: ⁷⁹⁰ proper professional advice should be taken on this matter when there is any doubt ⁷⁹¹
• A person should give evidence in the normal way and leave it to the judge and/or jury to assess their competence like any other witness ⁷⁹²
• • Sheriffs and Judges should be given appropriate awareness training and then they would be able to weigh the evidence of a vulnerable witness in the same way as any other witness ⁷⁹³
  • Children are no more likely to lie in court than any adult and therefore their evidence should be heard and judged on its merits ⁷⁹⁴
• It should be established that the witness knows the difference between truth and lies and appropriate acknowledgement made of their age and ability ⁷⁹⁵
• The appropriate adult scheme should be extended to compensate ⁷⁹⁶

(ii) Modification

168. As indicated, 21% (n=12) of Consultees advocated modification of the competence test for children. These Consultees commented that:

• There should be some formal and independent procedure to ensure that all child witnesses are assessed by a specialist prior to the trial ⁷⁹⁷
• It may be appropriate to reformulate the competence test in terms of some pre-determinable objective measures ⁷⁹⁸
• Competence should be established before a court case and not in court when a vulnerable person is already anxious and may be confused as to why the judge is asking particular questions ⁷⁹⁹
• It should be either put aside completely or applied to all witnesses who meet the criteria of vulnerability ⁸⁰⁰

(iii) Retention

169. Sixteen per cent (n=9) of Consultees that addressed this question were in favour of retaining the competence test for children. Suggestions advanced by these Consultees include:

• A test should be retained for all witness particularly when the issue is in dispute ⁸⁰¹
• The test should be retained as at present: judges should rule on the competence of a witness but should seek expert assistance where feasible ⁸⁰²
• The test helps a child's ability to distinguish between truth and lies and understand what is required of him/her in giving evidence ⁸⁰³

170. A Consultee in favour of retaining the test commented that the test has to be impartial and fairly applied; however, concern was expressed it has not been applied uniformly in relation to children. ⁸⁰⁴ Another suggested that there may be scope for "reconstructing and redefining" a test in respect of any witness, in particular child witnesses. ⁸⁰⁵

(iv) Undecided

171. Overall, two (3%) Consultees did not specify a view either way on whether the competence test for children should be abolished, modified or retained. One of these Consultees pointed out that retaining the test should be "dependent on the expertise of Sheriffs and judges who administer it." ⁸⁰⁶ This Consultee advised that Sheriffs and judges who informed the study which evaluated Child Witness Support had difficulties assessing children's competencies and suggested that practical guidance on age appropriate questioning would be useful. It was further suggested that the "comprehensive checklist on communicating with witnesses (children or young persons) and compiled by researchers Plotnikoff and Woolfson should be considered for use with similar guidance being compiled for other categories of vulnerable witnesses." However, they also proffered the view that if adequate measures were in place to support all vulnerable witnesses there might not be any need for a competency test. ⁸⁰⁷

Question 25(b): Should the competence test be retained, modified or abolished for (a) children only and (b) for all witnesses?

(b) All Witnesses

172. A third of Consultees (n=25) did not specifically address this section of Question 25. Of those that did (n=51), 53% (n=27) were in favour of abolishing the competence test for all witnesses; 24% (n=12) were in favour of modification while 17% (n=9) advocated retention. Six per cent (n=3) of Consultees did not specify a view on the matter.

(i) Abolition

173. Overall, half of the Consultees (n=27) that addressed this question were in favour of abolition of the competence test for all witnesses. In the main, sentiments expressed by Consultees in relation to abolition of the test for all witnesses echoed the views advanced in relation to abolition for child witnesses. Nevertheless, following is an overview of same:

• Retention of the test is an example of inequitable 'justice by geography' as it has been abolished for all witnesses in England and Wales ⁸⁰⁸
• The competence test has been applied inconsistently with judges determining their own criteria ⁸⁰⁹
• Witness competence should not be a bar to admission ⁸¹⁰
• Assessment of a person's competence cannot be properly tested by a judge sitting alone ⁸¹¹
• The test of competence may vary between judges with inconsistent, potentially discriminatory outcomes ⁸¹²
• The test does not offer any advantage to the evidential process ⁸¹³
• The administering of the test leaves certain groups open to the possibility of abuse, without recourse to justice ⁸¹⁴

174. These Consultees advanced a number of suggestions as to what could replace the competence test:

• Provision of evidence with accompanying information about a person's level of understanding and how this might affect their testimony would be better procedure ⁸¹⁵
• The Court should evaluate the evidence of the witness in the context of the special measures proposal ⁸¹⁶
• The court should hear all pertinent evidence and weigh up the reliability of evidence given by an individual witness, including their level of maturity and understanding ⁸¹⁷
• The test should be replaced with an assessment of needs ⁸¹⁸
• Sheriffs and judges should be given appropriate awareness training. They would be able to weigh the evidence of a vulnerable witness in the same way as any other witness ⁸¹⁹

(ii) Modification

175. As the data indicate, 24% (n=12) of Consultees that expressed a view on this matter were in favour of modification of the competence test for all witnesses. Suggestions for modification include:

• The test should be modified so that children and adults with learning disabilities are afforded the opportunity to participate in their court case ⁸²⁰
• Improved case management and appropriate training for the Crown Prosecution Service and Sheriffs would enable greater understanding of a person's competence as a witness ⁸²¹
• Competence should be established before a court case commences and not in court when a vulnerable person is already anxious ⁸²²
• The competence test could be set aside if an appropriate assessment tool was available ⁸²³
• It should be either put aside completely or applied to all witnesses who meet the criteria of vulnerability ⁸²⁴
• In any case involving a vulnerable adult it is likely that a report will already have been obtained from a Psychologist. This report could be used to address the issue of competence if the report was identified as independent and not Crown property ⁸²⁵
• "The competence test is still of value in filtering out evidence upon which no reasonable finder of fact should be prepared to rely." It may therefore be appropriate to reformulate the test in terms of some pre-determinable objective measures ⁸²⁶
• "It is difficult to legislate or to provide rules as to the ability of a witness to give evidence." The relevance of witnesses is likely to vary enormously and it would be better to deal with each case at the judge's discretion ⁸²⁷

(iii) Retention

176. Of the Consultees to address this issue, 17% (n=9) advocated retention of the competence test for all witnesses on the basis that:

• Letting the jury decide on competence (along with the other evidence) would result in the trial being protracted to the detriment of witnesses and accused alike. ⁸²⁸ Also, juries may not be best equipped to make this judgement ⁸²⁹
• Judges should rule on the competence of a witness but should seek expert assistance where feasible ⁸³⁰

(iv) Undecided

177. Six per cent (n=3) of Consultees did not specify a view on the matter. One Consultee advanced the idea that retaining the competence test for all witnesses "would be dependent on the expertise of Sheriffs and Judges who administered it." ⁸³¹ Additionally, it was opined that if adequate measures were in place to support all vulnerable witnesses, including persons suffering from a mental illness, there might not be any need for a competency test. ⁸³²

Question 25(c): How should the courts deal with the giving of evidence by witnesses who may have mental disorder or impairment?

178. Seventy one per cent (n=58) of Consultees did not specifically address this strand of Question 25. The Consultees that did address the matter (n=18) suggested that the courts should deal with the giving of evidence through use of:

• An amicus curiae or intermediary to support anyone with learning difficulties or mental illness ⁸³³
• Expert psychological evidence ⁸³⁴
• Psycho-metric analysis in conjunction with assessment by other individuals such as a psychiatrist, psychologist, nurse or social worker, and someone from the criminal justice system such as a solicitor ⁸³⁵
• The use of expert psychological or psychiatric reports should be routine ⁸³⁶
• In the case of a mentally disordered witness, the court may, with the witness' consent, want to arrange a psychiatric examination. It should however be left for the judge and jury to decide what weight they give to the evidence ⁸³⁷
• A similar approach to be adopted to that used in the Appropriate Adult Scheme where questioning is undertaken by the police ⁸³⁸
• The procedure outlined in paragraph 7.14 ⁸³⁹ of the Consultation paper should be adopted ⁸⁴⁰

179. It was highlighted by one Consultee that the competence test could become a hurdle which many mentally ill people find "both distressing and probably insurmountable." ⁸⁴¹

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