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All witnesses who are competent are also compellable1, unless one considers the compellability of spouses. Whilst married partners are compellable to testify on behalf of their spouse, no such universal compellability arises for the prosecution. The testimonial privilege was once an undefeatable rule of the common law unless it involved violence against the other spouse. Arguably, the institution of marriage is no longer worthy of such protection and now represents an unjustified intrusion into the search for truth. As such, due to the increased public demand6 to address certain crimes and the rising levels of judicial discontent, the law has developed in such a way to grossly undermine the protection afforded to spouses in criminal proceedings. Despite its criticisms, the spousal privilege was once well founded on numerous rationales, as highlighted by the House of Lords in Hosykn. However, many of the justifications underpinning the above decision have now dwindled into legal obscurity and the privilege, as enacted in S.80 of the Police and Criminal Evidence Act 1984 now rests on two narrow social policies; the objection…to disturbing marital harmony and the harshness of compelling a wife to give evidence against her husband.
Whilst marriage may have a beneficial effect on society, it assumes that in some cases, the personal interests of marital harmony take precedence over the wider interests of criminal justice and the interests of the victim10. The Police and Criminal Evidence Act was enacted, inter alia11, because of the haphazard way in which the rules relating to the competence and compellability of spouses had developed. Based on the Committee’s recommendations, the scope of compellability was extended where the offence fell within a specified list in S.80(3). It was hoped that the
reforms established by S.80 would achieve an equilibrium between the two competing interests aforementioned, but it has been recognised that in ‘seeking to strike this balance S.80 produce[d] arbitrary and unpalatable distinctions’.
Whilst each difference will be discussed in turn, the decision in R v Pearce exemplifies the first distinction; the limited breadth of witnesses entitled to testimonial immunity. Firstly, in regards to cohabitants, it has been suggested that this distinction is both arbitrary16 and discriminatory17. The narrow reasoning against the extension to cohabitants, as compounded by Kennedy LJ arguably fails to counter such a criticism but nevertheless the distinction is justified when one considers the persuasive arguments established by the European Court of Human Rights in Van der Heijden v The Netherlands18, which is of a case of almost identical facts. The increasing flexibility taken to the judicial interpretation of families in their preference of substance over form was narrowly rejected by Kennedy LJ in his strict interpretation of S.80(3).
Whilst correct as a matter of law, Kennedy LJ failed to provide any reasoning as to why such an approach was preferred21. However, the arguments compounded by the Court in Van der Heijden evidence support of Kennedy LJ’s decision, it held that member states were entitled to confer “special status on relationships that could be objectively verified by marriage or registration”. Furthermore, even though the issue was not directly raised in Pearce, the societal value of the each relationship exemplifies the reasonableness of such a distinction between spouses and unmarried cohabitants. It was identified, in Van der Heijden, that the special status of marriage gives rise to its own set of consequences which cohabitees are not subject to and as such renders each fundamentally different, arguably the legislature is therefore entitled to treat the two differently. Finally, it was argued in Pearce that such a distinction violated a cohabitant’s Article 8 rights but Kennedy LJ was, rightly, very dismissive of such an argument. It was recognised that had the exemption been widened it would have been difficult to “see where, logically, the widening should end”.
Establishing a criterion to be met before cohabitants could enjoy testimonial immunity would only create more arbitrary and discriminatory lines. Whilst the issue has not proven insurmountable in other jurisdictions, a similar but more extensive approach, as compounded by Brabyn, which advocates for a larger breadth of non-compellable witnesses with an exclusionary procedure, whilst removing some of the distinctions created by S.80 would render the harmony of two persons justiciable. Such an approach has been considered beyond of the powers of a criminal court and potentially could violate the Article 8 rights which the arguments of extension are predicated on. Arguably, verifying those who are entitled to the spousal privilege by the objective standard of marriage or civil partnership presents a more principled approach. However, the court’s preference in its objectivity has created an anomalous position; it is arguable that any extension of testimonial immunity is unwarranted as all citizens have an inviolable right to marry under Article 12. It was held in R v Registrar General that the right to marry cannot be impeded in the interests even if the only intention to marry is to avoid criminal liability.
Therefore, under the current position of the law, harmony is assumed simply by virtue of a marital contract34. This blind approach to marital harmony has the unsatisfactory consequence of protecting wholly sham marriages35 Next, the court in Pearce was invited to consider the breadth of testimonial privilege in relation to family members; Kennedy LJ was arguably more dismissive of this extension stating that the arguments were even weaker36. In reference to the arguments already made, such an assertion is incorrect. The court’s evident favourability of objective verification in regards to the marital contract is equally applicable to family members, who can be ascertained as objectively through marriage or consanguinity.
Furthermore, the rationales aforementioned which underpin the spousal privilege are also equally applicable. This justification is arguably arbitrary and the reasoning compounded by Kennedy LJ arguably fails to provide any further persuasive argument against the extension. However, whilst the judgement is lacking in its clarity, it is important to note that any extension of the testimonial privilege is beyond the powers of the court and will require statutory intervention. Next, whilst the introduction of the three compellable offences in S.80(3); offences of domestic violence against the spouse, violent or sexual offences committed against children under the age of sixteen41 and inchoate offences of a similar nature undermined the breadth of testimonial immunity, it has been criticised for its restrictive approach. The list was predicated upon a series of policy considerations and as such, the reliance on a strict list of offences has required the law to make decisions at ‘too high a level of generality’.
Whilst a more extensive list may go towards solving the issue, it still would be too inflexible an approach45. Arguably, extending the list is not necessary as a broad judicial interpretation of the word ‘involves’ in S.80(3) has somewhat mitigated the restrictiveness of what types of offence govern spousal compellability. The Court in R v A(B) held that it is “sufficient if the offence encompasses the real possibility of an assault or injury” rather than determining whether an offence renders the spouse compellable by reference to its legal ingredients; such a broad interpretation may alleviate the failings of the statute to consider the seriousness of an offence48. Furthermore, the list of offences has not only been criticised for its restrictive approach but also for the implementation of the arbitrary age distinction of sixteen49. Parliament, in enacting S.80 indicates that children are a special class of persons worthy of protection, but extends no such protection to other vulnerable adults, such as the disabled daughter in R v L51; where the spouse of the defendant was not compellable as the daughter at material time, was nineteen. The decision in R v L has been regarded as controversial and arguably has had the greatest effect in undermining the spousal privilege.
The literal interpretation of “[Not] compellable to give evidence” allowed the court to draw a narrow distinction between a spouse’s oral testimony and their out-of-court witness statements; which were subsequently admitted under S.114(1)(d) of the Criminal Justice Act 2003. Despite arguments to the contrary, the admission of such statements did not merely present a paradox but offended the “spirit, if not the letter, of S.80”. Furthermore, the court failed to consider the exclusionary powers of S.114(3) which limits the inclusion of evidence if, for reasons other than it’s hearsay status, makes it inadmissible; S.80 renders spousal testimony privileged and therefore S.144(3) cannot render it admissible. The evident failing of the Court in R v L has effectively rendered the testimonial privilege effective where the spouse of an accused has the wisdom not to make any pre-trial statements. Whilst the court considered that informing a spouse of their choice whether to provide a witness statement would strengthen the prosecution’s application to admit the statement there remains no obligation to do so.
The court’s marked departure from the ruling in R v Pitt, which held that the spouse’s waiver of her right not to testify is only effective upon full knowledge60, is evident of the court’s greater interest in ensuring the conviction of those who commit offences of child abuse, over the private interests of the protection of marital harmony. Finally, whilst the court in L considered that whether it would be just to admit a statement under S.114 will depend upon the facts of each case, it failed to provide any direction as to what principles will need to be considered. A cautious approach has been suggested but there still remain no limitations on what a court will need to consider before a statement, ‘in the interests of justice’, is admitted into evidence. The factor considered in R v Horncastle, as to whether the evidence sought after is the “sole or decisive evidence” against the accused is no longer a determinative consideration to be taken by the courts. Therefore, until judicial guidance to the contrary or statutory intervention, the wrongful application of S.114 in L, which has continually been applied in subsequent decisions, will continue to undermine the spousal privilege. Whilst it has been advocated that the spousal privilege is tantamount to the protection of marital harmony and that without it fewer relationships will form, there lacks any credible evidence as to whether the spousal privilege really does help preserve marital harmony.
Therefore, the circumvention of the spousal privilege is not as harmful to committed relationships as perhaps perceived69. The law on spousal compellability is predicated upon a series of unpalatable distinctions and simply extending the lines to cover more offences or to protect further classes of persons will only continue to belie the justifications underpinning the spousal privilege. The commentary on spousal compellability has focused on the damage caused by compelling a spouse to testify against their partner but it has been forgotten how much damage is caused to marital harmony by the actions of the defendant in breaking the law70. Arguably, the rule no longer predicates itself on the logic or no social importance it was founded upon and as such complete abolition is the only principled solution.
Leach v R  A.C 305 (HL)
The King v Lapworth  K.B 117 (CA)
Hoskyn v Metropolitan Police Commissioner  A.C 474 (HL) R v Pitt  3 W.L.R 359;  Q.B. 25 (CA)
R(On the application of the Crown Prosecution Service) v Registrar General of Births, Deaths and Marriages  EWCA Civ 1661;  Q.B 1222 R v Pearce  EWCA Crim. 2834;  1 Cr. App. R. 39
R v Birks  EWCA Crim 3091;  2 Cr App R 7
R v L  EWCA Crim 973;  1 W.L.R 626
R v Horncastle  EWCA Crim 964;  2 A.C. 373
R v A(b)  EWCA Crim 1529;  1 W.L.R 3378
R v Horsnell  EWCA Crim 227;  WL 488325
Police and Criminal Evidence Act 1984
Human Rights Act 1998
Youth Justice and Criminal Evidence Act 1999
Criminal Justice Act 2003
Civil Partnership Act 2004
European Union Legislation
European Convention on Human Rights and Fundamental Freedoms 1951 European Court of Human Rights
Hamer v United Kingdom App no 7114/75 (ECHR 13 December 1979); (1982) 4 E.H.R.R 139 Van der Heijden v The Netherlands App no 42857/05 (ECHR 3 April 2012); (2013) 57 E.H.R.R 13 Commonwealth Legislation
(Victoria) Evidence Act 2008
Wigmore J, Wigmore on Evidence (1st edition, McNaughton 1961) Articles
Brabyn J, ‘A Criminal Defendant’s Spouse as a Prosecution Witness’  8 Crim. L. R Creighton P, ‘Spouse Competence and Compellability’  Crim. L. R 34 Hoyano L, ‘R v BA: Witness Compellability – Husband and Wife’  2 Crim L. R 168 Penfold J and Finch E, ‘Spousal Immunity in Criminal Proceedings’  65 S.L.R 29, Munday R, ‘Sham Marriages and Spousal
Compellability’  J.C.L 336 Ormerod D, ‘Witnesses: Compellability – Spouse as Witness for Prosecution’  10 Crim. L. R 823 Ragavan K. S, ‘The Compellability Rule in England and Wales: Support for the Spouse of the Defendant’  77 Crim. L. R 310 Stuesser L, ‘Testimonial Privilege: Van der Heijden v The Netherlands’,  16 E&P 323
Command Papers and Law Commission Reports
Criminal Law Revision Committee, 11th Report Evidence (General), Cmnd. 4991 (London: Stationery Office, 1972)
Evans P, ‘Tighter Checks on Child Abuse’ The Times (London, 16 October 1985) Law Report, ‘Assaulted Wives need not Testify’, The Times (London, 7 April 1978)