Study guide
7.2 Oaths, Affirmations & Compelling Witness Attendance
UK Bar — Criminal Litigation, Evidence and Sentencing Exam
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1 Chapter 1: Introduction & BSB Assessment Overview
1.1 BSB Centralised Assessment Structure & Regulations 1.2 Overriding Objective & Court Structure 1.3 Classification of Offences, Court Jurisdiction & Funding
2 Chapter 2: Commencing Proceedings, Charges & Allocation
2.1 Commencing Proceedings & Police Station Procedure 2.2 First Hearing & Classification of Offences 2.3 Allocation and Mode of Trial 2.4 Sending for Trial & Committal for Sentence 2.5 Youth Court & Special Allocation Rules 2.6 Sentencing Powers of the Youth Court
3 Chapter 3: Bail, Remand & Case Management
3.1 Right to Bail & Statutory Exceptions 3.2 Bail Conditions, Breach & Appeals 3.3 Remands, Adjournments & Custody Time Limits 3.4 Case Management & Pre-Trial Hearings 3.5 Prosecution & Defence Disclosure
4 Chapter 4: Indictments & Preparation for Trial in the Crown Court
4.1 The Indictment: Form, Content, Time Limits & Specimen Counts 4.2 Joinder, Severance, Amendment & Voluntary Bills 4.3 Arraignment, Pleas & Change of Plea 4.4 PTPH, Applications to Dismiss & Offering No Evidence
5 Chapter 5: Criminal Evidence — General Principles & PACE Exclusions
5.1 Preliminary Evidential Matters: Relevance, Admissibility & Tribunals 5.2 Burden and Standard of Proof & Presumptions 5.3 Confession Evidence & Mandatory Exclusion 5.4 Discretionary Exclusion of Unfair Evidence 5.5 Inferences from Silence
6 Chapter 6: Special Evidentiary Rules — Hearsay, Character & Identification
6.1 Hearsay Evidence & The Four Gateways 6.2 Hearsay Safeguards, Multiple Hearsay & Procedure 6.3 Defendant Bad Character Evidence 6.4 Non-Defendant Bad Character & Co-Defendant Character 6.5 Good Character, Proof of Convictions & Bad Character Procedure 6.6 Visual Identification & Turnbull Guidelines
7 Chapter 7: Witnesses, Privilege & Opinion Evidence
7.1 Witness Competence, Compellability & Special Measures 7.2 Oaths, Affirmations & Compelling Witness Attendance 7.3 Examination in Chief: Leading Questions, Memory Refreshing & Hostile Witnesses 7.4 Cross-Examination, Previous Inconsistent Statements & Re-Examination 7.5 Opinion Evidence & Expert Witnesses 7.6 Privilege, Public Interest Immunity & Immunity
8 Chapter 8: Trial Procedure in the Magistrates' Court & Crown Court
8.1 Magistrates' Court Trial Procedure 8.2 Summary Trial: Pre-Trial Rulings, Absence & Abuse of Process 8.3 Crown Court Trial Procedure 8.4 Jury Trial: Absence, Unrepresented Defendants & Abuse of Process 8.5 Speeches, Summing Up & Verdicts
9 Chapter 9: Sentencing Framework & Guidelines
9.1 Sentencing Framework, Principles & Procedure 9.2 Seriousness, Guilty Plea Reduction, Aggravation & Mitigation 9.3 Sentencing Procedure: Newton Hearings, Reports & Goodyear Indications 9.4 Custodial Sentences, Suspension & Release 9.5 Mandatory & Minimum Custodial Sentences 9.6 Community Orders, Fines & Discharges 9.7 Ancillary Orders, Costs & Dangerous Offenders
10 Chapter 10: Appeals & Post-Trial Remedies
10.1 Appeals from the Magistrates' Court (Crown Court & High Court Case Stated) 10.2 Rectifying Mistakes, Case Stated & Judicial Review 10.3 Crown Court Appeals (Court of Appeal Criminal Division & Supreme Court) 10.4 CACD Procedure: Rectification, Leave, Renewal, Loss of Time & Fresh Evidence 10.5 Prosecution Appeals, Attorney General's References & the CCRC
7.2 Oaths, Affirmations & Compelling Witness Attendance
Key Takeaways Explain This Topic AI
A witness aged 14 or over gives sworn evidence only if they have sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth involved in taking an oath.
A witness under 14 gives unsworn evidence, and a witness of any age who does not satisfy the section 55 test also gives evidence unsworn.
Section 55(8) YJCEA 1999 presumes that a witness aged 14 or over has the necessary appreciation unless evidence is adduced to the contrary, and the party calling the witness must then satisfy the court on the balance of probabilities.
A witness summons in the Crown Court is issued under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, and in the magistrates' court under section 97 of the Magistrates' Courts Act 1980.
A witness who fails to obey a summons without just excuse may be arrested on a warrant and punished for contempt, with up to three months' imprisonment in the magistrates' court.
Last updated: August 2026
7.2 Oaths, Affirmations & Compelling Witness Attendance
Two small but heavily examined topics sit alongside competence and compellability: how a witness's evidence is sworn, and how an unwilling witness is brought to court.
1. Sworn and unsworn evidence
The starting point is that evidence in criminal proceedings is given on oath or affirmation . Sections 55 and 56 of the Youth Justice and Criminal Evidence Act 1999 then create a structured exception.
The section 55 test
A person may only be sworn if:
They have attained the age of 14 ; and
They have a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath (s.55(2)).
The consequences run in a clear order:
- Witness Position
- Under 14 Always gives unsworn evidence (s.55(2)(a)) — no inquiry is needed
14 or over Presumed to have the necessary appreciation "if he is able to give intelligible testimony", unless evidence is adduced to the contrary (s.55(8))
14 or over, but the presumption is displaced The party calling the witness must satisfy the court on the balance of probabilities that the s.55(2)(b) test is met (s.55(4)); if it cannot, the witness gives unsworn evidence under s.56
The determination takes place in the absence of the jury but in the presence of the parties (s.55(7)), and expert evidence may be received (s.55(6)).
Unsworn evidence is real evidence. By s.56(5), a conviction is not liable to be quashed merely because a person who ought to have been sworn gave evidence unsworn. And by s.57 , a person aged 14 or over who gives unsworn evidence commits an offence if they wilfully give false evidence.
Note carefully how this interlocks with competence under s.53: competence and the capacity to be sworn are different questions . A five-year-old may well be competent under s.53 (able to understand questions and give answers that can be understood) yet be incapable of being sworn under s.55. The order of analysis is competence first, then oath.
Affirmation
A witness who objects to being sworn, or for whom it is not reasonably practicable to administer the oath in a manner appropriate to their religious belief, may affirm under the Oaths Act 1978 . An affirmation has exactly the same force and effect as an oath — no adverse inference of any kind may be drawn from a witness's decision to affirm, and any suggestion in an SBA that affirmed evidence carries less weight is wrong.
2. Compelling attendance
A witness who is competent and compellable but simply will not attend must be compelled. The machinery differs by court.
Crown Court — Criminal Procedure (Attendance of Witnesses) Act 1965
Section 2 : the Crown Court may (and, where the conditions are satisfied, must on application) issue a witness summons requiring a person to attend to give evidence or produce a document or thing, where the court is satisfied that the person is likely to be able to give evidence likely to be material evidence , or produce a document or thing likely to be material evidence, and that it is in the interests of justice to issue the summons.
Section 2D : the court may issue a summons of its own motion.
Section 3 : where the person fails to attend and no just excuse is shown, the court may issue a warrant for their arrest.
Section 4 : a witness who disobeys a summons without just excuse is guilty of contempt of court and may be punished summarily by the Crown Court, with up to three months' imprisonment.
Magistrates' court — Magistrates' Courts Act 1980
Section 97 : a justice may issue a summons (or, where satisfied by evidence on oath that a summons would not procure attendance, a warrant ) requiring a person to attend to give evidence or produce a document or thing, if satisfied that the person is likely to be able to give material evidence and will not voluntarily attend .
Section 97(3)–(4) : where a witness attends but refuses without just excuse to be sworn or to give evidence, the court may commit them to custody for up to one month or impose a fine.
A witness who fails to answer a summons may be arrested on a warrant.
CrimPR Part 17
Part 17 supplies the procedure: applications must be in writing, served on the court officer and (usually) the proposed witness, and must explain what evidence the witness can give and why it is material. Where the summons seeks a document — most sensitively, third-party material such as social services or medical records — the person served may apply to have it withdrawn , and the court will consider confidentiality and any public interest immunity claim before ordering production.
The material-evidence threshold matters. A witness summons is not a disclosure device. A summons issued to obtain material for a fishing expedition, rather than because the witness can give evidence likely to be material, is liable to be set aside.
Exam traps in this section
Under 14 is a bright line : unsworn evidence, no inquiry.
The s.55(8) presumption applies to those aged 14 or over and is displaced only where evidence is adduced to the contrary ; the standard is then the balance of probabilities on the party calling the witness.
Affirmation carries the same weight as an oath.
The Crown Court power is the 1965 Act, s.2 ; the magistrates' power is s.97 MCA 1980 . Do not mix them up.