Who can be forced to be a witness?

Introduction

The general rule is that anyone who is competent can be compelled (forced) by the court 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 court. Evidence is admissible if it is relevant to the facts at issue in the case and it is not inadmissible for another reason, for example, because it is privileged evidence. 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 defence. If you decide not to give evidence in the case, the prosecution cannot comment on this to the jury. If you decide to give evidence in your trial, you can then be cross-examined by the prosecution. You cannot refuse to answer these questions on the grounds that it may incriminate you. However, the prosecution cannot 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 when they are trying to convict you. You also cannot be forced to give evidence against a co-accused if you are both being tried in the same proceedings. However, if the prosecution refuses to offer any evidence against you and you are found not guilty, then you can be forced 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 can be forced to give evidence for either the defence or the prosecution in a case against your spouse (unless you happen to be a co-accused). However, you may only be 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 either of the two offences above. Or of aiding, abetting, counselling, procuring or inciting a person to commit either of the two offences above.

Former spouses of the accused

A former spouse is someone who has a divorce, a judicial separation or 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 forced to give evidence against the accused about offences that were committed when you were still married 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 either of the two offences above. Or of aiding, abetting, counselling, procuring or inciting a person to commit either of the two offences above.

Diplomatic staff

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

Further information

You should get legal advice for more detailed information on this.


Page edited: 1 March 2019