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Witnesses (Introducing out-of-court statements (Rule against previous…

- - - - Refreshing Memory s139, s120(3)
      - Statements made that a witness cannot now remember s120(6)
      - Statements of complaint against D by V s120(7)
      - Statements concerning the ID of persons, objects or places s120(5)
      - Statements made to rebut allegations or recent fabrication s120(2)
  - - - Document made or verified by the witness at an earlier time
      - Transcript made from a sound recording made when the witness previously gave an oral account
      - In order to refresh their memory, the witness must indicate:
        
        it represents their recollection at the time they made it
        
        Their recollection was likely to be significantly better then, than now
- - - - Understand questions put to him as a witness
      - Give answers to them which can be understood
  - - - Prosecution cannot call a defendant to testify against a co-defendant on a joint charge
      - The defendant is not a competent witness for the prosecution
      - s53(4) YJCEA - A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution
    - - Privilege against self-incrimination means that D may give testimony on his behalf but doesn't have to
      - Under Common law adverse inferences should not be drawn from a failure to give testimony
        
        CRIMPO s35(3) undoes this - court or jury, in determining whether the accused is guilty of an offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question
    - - If D fails to appear as a witness:
        
        Jury can only draw adverse inferences if there is otherwise prima-facie case against D and silence can only sensibly be attributed to D having no explanation, or one that would withstand XX
        
        Jury must be directed to consider reasons given for his silence
  - - - Lawful spouses and civil partners are competent witnesses for P - s53 YJCEA 1999
        
        Lawful spouse does not include common law spouse - Khan (1986)
      - S is not compellable for P unless D is charged with a specified offence under s80(2) PACE, which are:
        
        A sexual offence against a person under 16
        
        An attempt at either of the other two
        
        Assault, injury or threat thereof to D's spouse or a person under 16
    - - S is a competent and compellable witness for the defence
      - S is competent to give evidence for a co-D s53 YJCEA 1999, but is only compellable if the offence is one of the specified offences s80(2)(a)(a)
- - - - S100(3) outlines the criteria that the court must have regard to for this section
        
        When the event occured
        
        Where the evidence relates to a person's misconduct and the probative value relates to its similarities with other misconduct, the nature and extent of similarities between them
        
        Nature and number of events to which the evidence relates
        
        Where the evidence related to the misconduct of another and it is suggested that that person is also responsible for the offence charged, the extent to which evidence suggests it was the same person