A competent witness is one who has the sufficient mental capacity to perceive, remember, and narrate the incident he or she has observed. A competent witness must also be able to understand and appreciate the nature and obligation of an oath. For example, a child who is unable to understand the meaning of an oath because of his or her young age is not a competent witness. In statutes relating to the execution of wills, a competent witness is a person who has attested to the will by subscribing his or her name, and at the time he or she attested, could legally testify to the will in court. Persons legally disqualified from testifying because of mental incapacity, personal interest, or conviction of a crime are not competent witnesses.
A witness is generally presumed by the court to be competent.
A competent witness is an individual who is deemed capable and legally qualified to provide testimony in a court of law. The witness must possess the mental capacity to understand the nature and significance of the proceedings, as well as the ability to recall and communicate relevant information accurately. The competency of a witness is determined by the court based on factors such as age, mental health, and understanding of the oath to tell the truth. A competent witness’s testimony is considered admissible and can be used as evidence in legal proceedings.
In the law of evidence, a person is ‘competent’ if he or she is legally permitted to give evidence in a court hearing. If a person is competent but unwilling to give evidence, then the question of compellability arises (see compellable witness). However, a non-competent witness is never compliant.
The rules on competence (and compellability) are different in civil and criminal proceedings. In both cases, the basic principle is that a person is competent, but there are exceptions (particularly for the defendant, his or her spouse, children, and people of limited intellect), and those exceptions are different in criminal and civil proceedings.
Civil Hearings
By virtue of the Evidence Act (1851) and the Evidence Amendment Act (1853), any adult of full intellectual capacity is a competent witness for any party. The following sections describe the situation concerning the parties and their spouses, children, and people of limited intellectual capacity.
Civil Hearings: Competence Of Parties And Their Spouses
There are no specific limitations on the competence of the parties and their spouses. Consequently, they are deemed competent at all stages of civil hearings.
Civil Hearings: Competence Of Children
There are no specific statutory rules above the competence of children, so the common law test defined in R v Hayes (1976) applies (although this was a criminal case). To be able to give sworn evidence, the child must understand the solemnity of the occasion and the duty to tell the truth.
However, under Section 96 of the Children Act (1989), even if the Hayes test would result in the child not being able to give sworn evidence, he or she may still be competent to give unsworn evidence.
The child’s evidence may be heard by the court if, in its opinion—
- (a) he understands that it is his duty to speak the truth; and
- (b) He has sufficient understanding to justify the evidence being heard.
Civil hearings: competence of persons of limited intellectual capacity
Since there is no express provision to the contrary, the rules appear to be the same as for children: the Hayes test will apply.
Criminal Trials
The general principle is set out in the youth justice and criminal evidence act (1999):
53(1) At every stage in criminal proceedings, all persons are competent to give evidence, whatever their age.
There are, however, exceptions (see below).
According to s.54 of the 1999 Act, it is for the party who wishes to call a witness to satisfy the court, on a balance of probabilities, that the witness is competent. The court must take into account any ‘special measures’ that may be implemented to protect the witness (see special measures for witnesses).
Criminal Trials: Competence Of The Defendant
By s.54(4) of the YJCEA 1999:
A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person or is one of two or more persons charged in the proceedings)
This means that the prosecution cannot call the defendant in a criminal trial to testify against his co-defendants. This measure is intended to protect the defendant’s privilege against self-incrimination and right to silence; the ‘right to silence’ would effectively be abolished in multiple-defendant cases if the prosecution could call defendants to give evidence against each other.
However:
(5) In subsection (4), the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).
Therefore, the prosecution may call a person who has pleaded guilty or had his proceedings suspended.
Criminal Trials: Competence Of Defendant’s Spouse
The defendant’s spouse is competent to give evidence for or against the defendant. However, such a person is unlikely to be compliant. See PACE S.80(2A) and (3).
Criminal trials: competence of people of limited intellectual capacity
By s.53(3) of the YJCEA 1999:
‘A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to
- (a) understand questions put to him as a witness, and
- (b) give answers to them which can be understood.
In general, a person who passes the test of s.53(3) is likely to be able to give sworn evidence under s.55.
Criminal Trials: Competence Of Children
The position regarding children is also governed by s.53(3); that is, the child must be able to understand questions and given intelligible replies. However, under s.55, a child under 14 cannot give sworn evidence. A child over that age can only give sworn evidence if he or she has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth
A competent witness is an individual who is legally qualified to testify in court or provide evidence based on their ability to understand and accurately recount information relevant to the case.
The competency of a witness is typically determined by their ability to:
- Understand the nature of the oath or affirmation to tell the truth.
- Perceive, recall, and accurately communicate information about the events or matters at issue.
- Express themselves clearly and coherently.
Generally, any person who meets the criteria for competency can be considered a competent witness, regardless of age, occupation, or relationship to the parties involved in the case.
In some jurisdictions, certain individuals, such as minors, individuals with severe mental impairments, or those otherwise unable to understand the duty to tell the truth, may be deemed incompetent to testify.
If a witness is found to be incompetent, their testimony may be excluded or given less weight by the court, or they may be disqualified from testifying altogether, depending on the circumstances.
Yes, a witness may be disqualified from testifying for reasons such as bias, lack of first-hand knowledge, privilege, or being otherwise legally prohibited from providing testimony.
Witness competency is typically assessed through questioning by attorneys or the court to determine the witness’s understanding of their duty to tell the truth and their ability to perceive, recall, and communicate relevant information.
Yes, witness competency can be challenged during trial by either party through objections or motions to exclude or limit the witness’s testimony based on competency grounds.
Yes, expert witnesses who possess specialised knowledge, training, or experience relevant to the case may be considered competent witnesses, provided they meet the competency requirements and are qualified to testify as experts in their field.
If a witness lies under oath, they may be charged with perjury, which is a serious criminal offence punishable by fines and imprisonment.
If a witness is found to be incompetent, their testimony may be excluded from the trial or legal proceeding.
This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.
This glossary post was last updated: 10th April, 2024.
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