Forced to be witness?

[Faith]

You aren't sounding dumb.
When this first happens to us, we are all new to it.

Is the solicitor he is using the same solicitor who acted as his duty solicitor. From the sounds of it, they are not a specialist.

[0505]

yes it is, oh god.... is it too late to change lawyers now do u think? his trial is less then a week

[Faith]

Is he on legal aid? I am assuming so. if so, he needs to put in an application to change his legal team at this stage so I would suggest that it would be too late.
Even if it were not, it would only give the new solicitor a few days to get to grips with the case which would be nigh on impossible.

I don't want to worry you, I don't know this solicitor at all, so I can't advise you really...the only real option is just to ensure the solicitor and barrister have all the information and make sure that the accused answers truthfully and fully at trial.

[0505]

Yes your right, this is all we can hope for now, that the truth will be seen, thank you so much for all your time tonight, you truly dont know how much you have helped me. Thank you

[Casehardened]

Hi 505,

Faith has given you very sound and comprehensive advice which I can't add to but I think you are concerned as to why you are to be called as a witness.

I think the clue to this is in the two things that you wrote below:

Faith i hope you dont mind i had a quick peek at a post you made before and you mentioned you made no comment in your interview, He also done this as he has never been interviewed before and just followed his lawyers advice as he did not know the right way to do it, he wanted to say what happened but was told it was best to do no comment? did this go agenst you and do you think it will go agenst him?

This is what i dont get, i was truthfull he was with me the night he had a one night stand with her (before he went out) and then he came back to mine. but i would not let him in and he called the police to get his things, so i just said what happened.

From the prosecutions viewpoint, as he went no comment they need to establish that he actually slept with her (unless they already have DNA evidence....not sure about this?)

As you obviously knew he slept with her, this is what they will want you to say in court. The possible questioning about your sex life will no doubt be to infer that as you were pregnant you may well have lost interest in sex and therefore he needed to 'force' his desires elsewhere.

Obviously your evidence will not affect the issue of consent either way (so your giving evidence will not condemn him) but only confirm that he did have sex with the girl.

Hopefully I have not added to your worries but thought it might help if you knew what you may be asked about when you give evidence.

PS you will probably also be asked what sort of person he is in bed: rough? gentle? caring? etc so you will also get a chance to speak up for him.

[0505]

Hi 505,

Faith has given you very sound and comprehensive advice which I can't add to but I think you are concerned as to why you are to be called as a witness.

I think the clue to this is in the two things that you wrote below:





From the prosecutions viewpoint, as he went no comment they need to establish that he actually slept with her (unless they already have DNA evidence....not sure about this?)

As you obviously knew he slept with her, this is what they will want you to say in court. The possible questioning about your sex life will no doubt be to infer that as you were pregnant you may well have lost interest in sex and therefore he needed to 'force' his desires elsewhere.

Obviously your evidence will not affect the issue of consent either way (so your giving evidence will not condemn him) but only confirm that he did have sex with the girl.

Hopefully I have not added to your worries but thought it might help if you knew what you may be asked about when you give evidence.

PS you will probably also be asked what sort of person he is in bed: rough? gentle? caring? etc so you will also get a chance to speak up for him.

Thank you, your right it does help me to know what i will be asked, just for my own mind as its a scary thought sitting there infront of people i dont know and being asked personal things.

[Denise]

It's very sad they left that particular part of the statement out

In my opinion, a genuine rape victim would not be saying things like that in a car park as she is about to allege a rape

But like you a lot of my statement was left out, I was rushed to sign it and didn't read it properly, again like you I very naive as I have never had to deal with police before let alone detectives

Getting back to initial interviews, faith was advised to "no comment" my son was advised to give a full honest account of his life, thoughts and opinions of his accusers, to which he did, my son and faith both received 'no further actiond' (NFA) by CPS

I hope you are doing ok, I'm so sorry your partner has become another statistic in this cruel system

I lost a baby girl 22 years ago and I still feel the loss of one child missing when my kids are all together so I fully understand you have that grieving process to contend with too, I really hope you were given reasons for losing your baby and it wasn't down to stress

Take care
Xx

[0505]

It's very sad they left that particular part of the statement out

In my opinion, a genuine rape victim would not be saying things like that in a car park as she is about to allege a rape

But like you a lot of my statement was left out, I was rushed to sign it and didn't read it properly, again like you I very naive as I have never had to deal with police before let alone detectives

Getting back to initial interviews, faith was advised to "no comment" my son was advised to give a full honest account of his life, thoughts and opinions of his accusers, to which he did, my son and faith both received 'no further actiond' (NFA) by CPS

I hope you are doing ok, I'm so sorry your partner has become another statistic in this cruel system

I lost a baby girl 22 years ago and I still feel the loss of one child missing when my kids are all together so I fully understand you have that grieving process to contend with too, I really hope you were given reasons for losing your baby and it wasn't down to stress

Take care
Xx

Thank you so much for your reply, there is a lot that does not add up with this girl, and his life has been ruined over it, i am no longer with him as i had to face facts he cheated me on, but i am still supporting him as he was a cheater not a rapist i do not doubt him.
i have a problem with my cervix and was meant to be on bed rest, i do not doubt this case, long hours standing while visiting him, did not help stress all played a part. when i gave birth the next day i was back at the prison very unwell, standing around for ages to tell him so a stranger did not have to tell him we lost our daughter.
i am feeling sure if he had told his side from the start he would not be there now, but he did not know what to do he was scared, he handed himself in thinking he could explain and all would be ok, i am just praying now a jury will see the truth and justice will be done, but he can never get these months back now, he never got to see his daughter just cos she has decided to lie
i am glad justice was done for your son (meaning they saw through the lies)

[RFLH]

have a look at

Definition of competency

A witness is competent if he or she can lawfully be called to give evidence.
The principle is set out in section 53(1) of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999):

'At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence'.

There are two exceptions:

• 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 understand questions put to him as a witness and give answers to them which can be understood [section 53(3)].
• 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) [section 53 (4)].

Top of page
Definition of compellability

A witness is compellable if he or she may lawfully be required to give evidence. Most witnesses who are competent can be compelled to give evidence. The only exception relates to spouses and civil partners who are only compellable to give evidence against their partner in limited circumstances - see Spouses and Civil Partners, below.
Top of page
File review

When reviewing a file of evidence, it is important to identify any witnesses whose competence may be called into question at trial, and to consider this when deciding whether there is a realistic prospect of conviction. The Code for Crown Prosecutors advises you to look for evidence which can be used and is reliable (paragraph 4.7).
It is also important to decide if a witness is compellable and, if not, if she or he will give evidence voluntarily. This may affect your decision to prosecute.
A prosecutor concluding at the review stage that a witness is not competent by virtue of section 53(3) should not do so lightly. Such a significant - and rare - decision should be discussed with, and authorised by, a DCP or above. The potential ramifications for the witness in both the present and future proceedings should not be underestimated.

Top of page
Determining competence

At a trial, the judge or the magistrates will decide if a witness is competent. An incompetent witness is one who comes within one of the exceptions set out above.
The exception in section 53(4) will be easy to establish.
The exception within section 53(3) is entirely witness specific and there should be no presumptions or preconceptions. Provided the witness can understand the questions put to him or her (by both parties) and can also provide understandable answers then he or she is competent. This assessment of competency should, where applicable, take into account techniques or measures that can be used to assist the witness to give his or her evidence, for example the use of a Registered Intermediary.
The Registered Intermediary must not be asked to comment on credibility or competence; their role is to assist the witness to give evidence to the best of his or her ability.
In R v B [2010] EWCA Crim 4, on the subject of competency, it was said:

'... the competency test is not failed because the forensic techniques of the advocate (in particular in relation to cross-examination) or the processes of the court (for example, in relation to the patient expenditure of time) have to be adapted to enable the witness to give the best evidence of which he or she is capable.'

Section 54 YJCEA 1999 sets out the procedure to be followed when determining the competency of a witness. In precis:

• the competence of a witness can be raised by a party to the proceedings or by the court of its own motion;
• the party calling the witness must satisfy the court on the balance of probabilities that the witness is competent;
• the determination of competence must be in the absence of the jury;
• expert evidence may be given;
• any questioning of the witness will be conducted by the court in the presence of the parties.

Questions of competency should ideally be decided at the start of the case but in any event before the witness is sworn or starts to give evidence. However, issues of competency may only become apparent after the witness has begun to give evidence or during cross-examination. This may be particularly so for child witnesses whose evidence in chief has been given in a pre-recorded video interview admitted under section 27 YJCEA 1999.

Top of page
Credibility and reliability

Competency should not be confused with credibility or reliability. At the stage when the question of competency is being decided upon judges or magistrates are not deciding whether a witness is, or will be, telling the truth or giving accurate evidence. Questions about credibility and reliability go to the weight of the evidence, not to the competence of the witness.

'...The purpose of the trial process is to identify the evidence which is reliable and that which is not, whether it comes from an adult or a child. If competent, as defined by the statutory criteria, in the context of credibility in the forensic process, the child witness starts off on the basis of equality with every other witness'. R v B [2010] EWCA Crim 4.

Prosecutors should also recognise that the competence of a witness is a separate issue to that of the mental capacity of a witness. Further information can be found in Guidance on prosecuting crimes against older people and in Victims and Witnesses who have mental health issues and/or learning disabilities - prosecution guidance.

Top of page
Children

Children of any age can be called to give evidence; their competence depends upon their understanding not their age. As far as competency is concerned the same test is applied to child witnesses as for adult witnesses. There is no additional, non-statutory, test to be applied for children based upon previous attitudes towards the ability of children to give evidence. The principles are encompassed in and governed by statute.
If you are considering calling a child to give evidence you should refer to Safeguarding Children: Guidance on Children as Victims and Witnesses.
Top of page

Spouses or Civil Partners

Section 80 of the Police and Criminal Evidence Act 1984 (PACE) is the statutory provision which governs the competence and compellability of spouses and civil partners in criminal proceedings.
Spouses or civil partners of a person charged in proceedings are generally competent to give evidence for the prosecution. The only exception is if the spouse or civil partner is jointly charged. If they are, neither is competent or compellable to give evidence, on behalf of the prosecution, against the other unless the spouse or civil partner witness has already pleaded guilty, or the proceedings in respect of the spouse or civil partner witness have been discontinued.
Spouses or civil partners are competent and compellable to give evidence on behalf of the defendant or the defendant's co-accused.

The prosecution can only compel a spouse or civil partner to give evidence for the prosecution in cases which involve:

• an allegation of violence against the spouse or civil partner;
• an allegation of violence against a person who was at the material time under the age of sixteen years;
• an alleged sexual offence against a victim who was at the material time under the age of sixteen years; or
• attempting, conspiring or aiding and abetting, counselling and procuring to commit the offences in the categories above.

If a spouse witness is divorced from the defendant or the civil partnership comes to an end before he or she gives evidence, the former spouse/civil partner is competent and compellable to give evidence as if that person and the accused had never been married or had never been civil partners.
Section 80 PACE does not apply to a defendant's partner to whom he or she is neither married nor in a civil partnership.
The decision to compel a witness to attend court with a view to giving evidence for the prosecution against his or her expressed wish is one that should be exercised with sensitivity and discretion.

When making the decision to compel a witness to attend court to give evidence against a spouse or civil partner you should bear in mind that the witness may be distressed. You will not know how the witness will react. He or she:

• may become a "hostile witness";
• may give good evidence; or
• may refuse to give evidence and be in contempt of court.

You should bear in mind that the refusal of a witness to attend court may be brought about through fear. If you consider that this may be a possibility, you should ask for further information from the police and consider the use of section 116 Criminal Justice Act 2003.
The provision of support from Victim Support, the police and other agencies may be very important to witnesses in these circumstances.
Further guidance on reluctant witnesses in domestic violence cases can be found in Care and Treatment of Victims and Witnesses and in Guidance on Prosecuting case of Domestic Violence

Marriage of defendant and witness

The marriage of a defendant to a witness before the trial makes the witness non-compellable for the prosecution, unless the charge is one of those set out above.
In the case of a defendant in custody, a prison governor may give an unconvicted inmate permission to marry.
However, there is no power to prevent the marriage between a prisoner on remand and a witness for the prosecution, even if this might make the spouse a non-compellable witness for the prosecution in the pending trial (R (CPS) v Registrar-General of Births, Deaths and Marriages [2003] Q.B. 1222, CA (Civ. Div.)).
Top of page
Level of authority

The decision to compel a spouse or civil partner to attend court to give evidence against his or her spouse or civil partner should only be taken by a senior lawyer, experienced in dealing with sensitive cases.

http://www.cps.gov.uk/legal/a_to_c/c...lability/#an07

[0505]

Hi 505,

Faith has given you very sound and comprehensive advice which I can't add to but I think you are concerned as to why you are to be called as a witness.

I think the clue to this is in the two things that you wrote below:





From the prosecutions viewpoint, as he went no comment they need to establish that he actually slept with her (unless they already have DNA evidence....not sure about this?)

As you obviously knew he slept with her, this is what they will want you to say in court. The possible questioning about your sex life will no doubt be to infer that as you were pregnant you may well have lost interest in sex and therefore he needed to 'force' his desires elsewhere.

Obviously your evidence will not affect the issue of consent either way (so your giving evidence will not condemn him) but only confirm that he did have sex with the girl.

Hopefully I have not added to your worries but thought it might help if you knew what you may be asked about when you give evidence.

PS you will probably also be asked what sort of person he is in bed: rough? gentle? caring? etc so you will also get a chance to speak up for him.

sorry i forgot to add about DNA... He put the condom in a bin next to where they had sex (he clearly was not worried about his dna by doing that i think??) the DNA on the condom came back as some of his dna is on it, but its partial meaning somthing but i dont know? about it could also belong to thousands of other men cos its only markers??? but there was also two other people dna on it as well?? very confusing.

[0505]

RFLH thank you for that information i be having a good old read of it

[0505]

The police lady just this second called me, she said, i spoke to you before and you know ***** is due in court next week and i am just calling for an update and to see if you had the baby yet, so i told her what happened and how i have just buried the baby, i said are they still making me go to court, she said she is going to call them to
see if i still have to go and to inform them of whats happened, she called back while i was writing this and said i still have to go, but they are going to try to not let anyone mention the baby ?

[Casehardened]

sorry i forgot to add about DNA... He put the condom in a bin next to where they had sex (he clearly was not worried about his dna by doing that i think??) the DNA on the condom came back as some of his dna is on it, but its partial meaning somthing but i dont know? about it could also belong to thousands of other men cos its only markers??? but there was also two other people dna on it as well?? very confusing.

The DNA evidence sounds inconclusive so this may explain why they want you to give evidence that they did sleep together.

[RFLH]

also read

http://www.hse.gov.uk/enforce/enforc...ss-witness.htm

and see if there's anything that they didn't do that they should have done. I can't say as I've ever heard of a witness statement being done over the phone.

[0505]

also read

http://www.hse.gov.uk/enforce/enforc...ss-witness.htm

and see if there's anything that they didn't do that they should have done. I can't say as I've ever heard of a witness statement being done over the phone.

This is what confused me, my witness statement was taking over the phone in my friends house who is also a witness in this case at the same time i was on the phone to one lady my friend was on the phone giving her statement to another lady, we were in the same room. the next day it was brought round to her house typed up and for us to sign we were together once again and both signed at the same time. this is why i never thought it was as serious as it was, cos everything was so informal. Thank you for the link will have a read now