"(1) Any question whether a witness in criminal proceedings may be sworn for the purpose of giving evidence on oath, whether raised— (a) by a party to the proceedings, or (b) by the court of its own motion shall be determined by the court in accordance with this section."
"(2) The witness may not be sworn for that purpose unless— (a) he has attained the age of 14, and (b) he has 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."
"(1) Subsections (2) and (3) apply to a person (of any age) who— (a) is competent to give evidence in criminal proceedings, but (b) (by virtue of section 55(2)) is not permitted to be sworn for the purpose of giving evidence on oath in such proceedings. (2) The evidence in criminal proceedings of a person to whom this subsection applies shall be given unsworn. (3) A deposition of unsworn evidence given by a person to whom this subsection applies may be taken for the purposes of criminal proceedings as if that evidence had been given on oath. (4) A court in criminal proceedings shall accordingly receive in evidence any evidence given unsworn in pursuance of subsection (2) or (3). (5) Where a person ('the witness') who is competent to give evidence in criminal proceedings gives evidence in such proceedings unsworn, no conviction, verdict or finding in those proceedings shall be taken to be unsafe for the purposes of any of sections 2(1), 13(1) and 16(1) of theCriminal Appeal Act 1968 (grounds for allowing appeals) by reason only that it appears to the Court of Appeal that the witness was a person falling within section 55(2) (and should accordingly have given his evidence on oath)."
"8. I do not accept that submission. If it were correct, one could reasonably expect the language of section 56(5) to indicate that, and it does not. 9. Moreover, that reading of section 56(5), contended for by the defence, is not consistent with the language of section 56(5), which ends:'...by reason only that it appears to the Court of Appeal that the witness was a person falling within section 55(2) (and should accordingly have given his evidence on oath).' 10. If the reference to 'a person falling within section 55(2)' were a reference to a person in respect of whom the trial court had ordered under section 55 that he or she could give evidence without being sworn, as the defence contend, section 56(5) would not go on to state, in parentheses, 'and should accordingly have given his evidence on oath'. That passage in parentheses would not make sense on the interpretation of section 56(5) contended for by the defence. 11. The words '...the witness was a person falling within section 55(2) (and should accordingly have given his evidence on oath)' can only sensibly be interpreted to mean that the reference to a person falling within section 55(2) is to a person who meets the criteria in section 55(2)(a) and (b), namely a person who: (a) has attained the age of 14, and (b) has 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 12. There is no issue in this case that those criteria are met in relation to [C2]. 13. In my judgment the explanatory notes to the Act do not support the defence submission that section 56(5) is limited to situations in which the trial court has made an order under section 55(2). The explanatory note in relation to section 56(5) says this: 'Subsection (5) of section 56 provides that convicted offenders will not be successful if they appeal against their convictions solely on the ground that a witness gave evidence unsworn when it should have been sworn.' 14. In Sharman[1998] 1 Cr App R 406 the Court of Appeal held that a failure to administer the oath to a witness before that witness gave evidence, where the oath should have been administered, rendered unsafe a conviction based on the witness's evidence. 15. However, that case pre-dates the coming into force of theYouth Justice and Criminal Evidence Act 1999 . In my judgment the decision in Sharman has clearly been superseded bysection 56(5) of the 1999 Act ."
"16. The failure in the present case to administer the oath to [C2] before she started giving evidence has been identified at a relatively early stage of the prosecution case. 17. In my judgment it is appropriate for [C2] to be recalled, for the oath to be administered, and for the prosecution to ask her, now under oath, whether the evidence she gave yesterday was accurate and truthful. 18. The defence should then have the opportunity to ask her further questions in cross-examination if they choose to. If the defence take the view that it is necessary to repeat the whole of the cross-examination, which lasted for about half an hour, I would not stop them from doing so. 19. The defence submitted that the failure to administer the oath may have had some effect on the evidence that the witness gave yesterday. The defence submitted that the witness may not have felt the same responsibility to tell the truth when giving evidence yesterday because she had not taken the oath. I have considered this carefully. Having observed the witness giving evidence yesterday, I do not accept that there are any reasonable grounds for concluding that her evidence may have been different in any significant way, or at all, if the oath had been administered before she started giving evidence. In any event, I am satisfied that any concerns about this will be cured by the witness being recalled, taking the oath, being asked to confirm, now under oath, that what she said in evidence yesterday is accurate and truthful, and by the defence having a further opportunity to cross-examine her. 20. I am satisfied that continuing with the trial in these circumstances will not cause any unfairness to the defendant."
"In that case the evidence of a 14-year-old girl was received through two previously recorded video interviews and she was then cross-examined without having taken the oath. Then the oversight was noticed. The matter was mentioned in the absence of the jury. Despite opposition from defence counsel the judge decided to have the oath administered retrospectively. That having been done he asked the witness whether the contents of the interviews had been true to which she replied ‘Yes’ and then he asked whether or not she had answered questions in cross-examination truthfully to which she also replied in the affirmative. In circumstances which cannot be distinguished from the present case the Court held that the failure to administer the oath was an irregularity and further that the matter could not be cured by administering of the oath retrospectively and further that the error had been compounded by giving the witness an opportunity to ratify her previous unsworn statements notwithstanding a number of internal inconsistencies."
"The evidence ostensibly given was not evidence at all."