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Who can be forced to be a witness?

Introduction

The general rule is that anyone who is competent can be compelled (forced) to give evidence in a criminal or civil case. You are considered to be a competent witness if you are capable of giving admissible or allowable evidence in a court. In civil proceedings the court may give anonymity to a witness where the witness has a medical condition and being identified as having that condition would cause undue stress to the witness.

There are a number of circumstances, however, where you cannot be forced to attend and give evidence.

Rules

The accused

If you are the accused in a criminal case you do not have to give evidence in your own defence. If you decide not to give evidence in the case, that fact cannot be commented upon by the prosecution to the jury.

If you do opt to give evidence in your trial, you may then be cross-examined by the prosecution and you cannot refuse to answer any question on the grounds that it may incriminate you. However, the prosecution may not ask you questions about your previous bad character unless you have:

  • Introduced evidence of your own good character or
  • Questioned the character of any prosecution witness or
  • Given evidence in your own defence against a co-accused

You cannot be forced to give evidence by the prosecution in their efforts to convict you. You also cannot be compelled to give evidence against a co-accused where you are both being tried in the same proceedings. However, if the prosecution refuses to offer any evidence against you and you are acquitted, then you can be compelled to testify against a co-accused.

The spouse of the accused

Under Part 4 of the Criminal Evidence Act 1992, if you are the spouse of the accused you are competent to give evidence for either the defence or the prosecution (unless you happen to be a co-accused). However, you may only be compelled or forced to testify for the prosecution against the accused if:

  • The offence in question is of violence or the threat of violence to you, your child or the accused’s child, or a person under 17 (includes an adopted child)
  • The offence is a sexual offence in relation to your child, the accused’s child or a person under 17 (includes an adopted child)
  • The offence consists of attempting or conspiring to commit or of aiding, abetting, counselling, procuring or inciting commission of either of the above two offences

Former spouses of the accused

A former spouse is a person who has either got a decree of divorce or judicial separation or who has a separation agreement with the accused. If you are a former spouse you are considered competent and may be forced to testify for the defence or the prosecution.

However, you cannot be compelled or forced to give evidence against the accused in relation to offences committed while the marriage was still ongoing unless:

  • The offence in question is of violence or the threat of violence to you, your child or the accused’s child, or a person under 17 (includes an adopted child)
  • The offence is a sexual offence in relation to your child, the accused’s child or a person under 17 (includes an adopted child)
  • The offence consists of attempting or conspiring to commit or of aiding, abetting, counselling, procuring or inciting commission of either of the above two offences

Diplomatic staff

Diplomatic agents are competent and may give evidence, but they are not obliged to give evidence as witnesses in either criminal or civil proceedings. This means that they cannot be compelled or forced to give evidence in any case.

Further information

For more detailed information you should seek legal advice.

Page updated: 24 December 2013

Language

Gaeilge

Related Documents

  • Competence of a witness
    This document discusses the question of who is competent to be a witness and sets out people who are not considered to be competent witnesses.
  • Witnesses under 18 years
    Rules under which witnesses under 18 years may give evidence in the District Court, the Circuit Court or the Central Criminal Court.
  • Victims of Crime and the Law
    Legislation that has been implemented to protect and support victims of crime.

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