The Current Law on Spousal Compellability - Literature review Example

Whether the current law on spousal compellability is justifiable. Current law on spousal compellability is governed by section 80 of the Police and Criminal Evidence Act 1984 (PACE) 1as amended by section 53 (1) of Youth Justice and Criminal Evidence Act 1999 (YJCEA).2 S 53 (1) of YJCEA states that all persons of any age can give evidence at all stages of criminal proceedings subject to S 53 (4 ) which exempts persons who as witnesses are not capable of both understanding and answering questions directed at them. They are considered incompetent by the court and 53(4) which renders incompetent persons charged in the same proceedings, to give evidence.3 Section 80 of PACE Act deals with competency of the spouse of an accused to give evidence in any proceedings. Section 80 (1) enables spouse of an accused to give evidence subject to section 80 (4) which says that a person charged shall not be compelled to give evidence by invoking sections 80 (2) and 80 (2 A). Section 80 (2) names spouse or civil partner of the accused as compellable to give evidence on behalf of the accused. Section 80 (2A) (a) states that the said spouse can be compelled to give evidence for any other accused in the same proceedings provided it is for the offence of which his/her spouse has been charged. 80 (2) (b) says that the spouse of the accused can be compelled to give evidence for the prosecution only for certain offences specified in section 80 (3) for which any person has been charged. The specific offences are assault, injury or threat of injury, sexual offence, attempt or conspiracy to commit, aiding, abetting, counselling, procuring or inciting the commission of these offences against spouse or civil partner or any person who was less than 16 years at the material time. If the person ceases to be a spouse or civil partner, the prohibition against compellability also ceases. In the event of the spouse of the accused not giving the evidence, it shall not be commented by prosecution. With these provisions section 1 (d) of the Criminal Evidence Act 1898 (communications between husband and wife) and 43 (1) the Matrimonial Causes Act 1965 are repealed. The sexual offences mentioned are the ones mentioned in the Sexual offences Act 1956, Indecency with Children Act 1960, Sexual Offences Act 1967, section 54 of the Criminal Law Act 1977 or Protection of Children Act 1978 or part 1 of Sexual Offences Act 2003.4 In view of the above provisions, it follows that spouse of a person charged in the proceedings is compellable to give evidence for the prosecution in respect of those proceedings only for the specified offences mentioned in section 80 (3) above. Originally, spouse was not compellable for the prosecution at common law in view of avoiding discord in a marital institution besides the notion that husband and wife were one. If it is compellable under the pretext of public policy, it would amount to invasion into home setting wife against husband or vice versa though it could result in considerable convictions. But since the home is the sanctum sanctorum of civilisation, convictions cannot make goods the ruining of homes, as observed in the early 20th century by an American Court in State v Norman, 155 SW 135 at 139 (Tenn., 1913) 5 The 1999 Act permits compulsion only in respect of specified offences leaving a plethora of other offences which a spouse can commit and escape from spousal evidence even by going to the extent of committing a sham marriage.6 Although PACE Act has no clue to a solution to this possibility and courts also tend to give wider interpretation of the specified offences, court can still disregard a sham marriage if properly proved 7 In an earlier decision prior to PACE on Hoskyn v Commissioner of Police for the Metropolis [1978] 8 , the House of Lords reaffirmed the traditional common law of non-compellability of spouse to tender evidence against her/his other spouse. The wounds, the spouse received in this case were serious “two stabs on the chest, a 9 centimetre cut from the temple to the right ear, smaller cuts to her right lip and chin and a 4 ½ centimetre cut on the left forearm”9 Thus even in equally serious cases armed robbery, keeping the loot in the home, child sexual abuse and violence against wives, it was presumed that burden of proof was on the spouse and not on the court. In practice, the wives and girls have either withdrawn cases or refused to give evidence. However, Judge Pickles sentenced a spouse for seven days imprisonment for contempt of court by not coming forward to give evidence against her boy friend 10 In 1988, 46 % of nearly 109,580 spousal violence cases registered in London police station had to be withdrawn prior to commencement of court proceedings for want of evidence forthcoming from complainant spouses.11 Courts have upheld the marital privacy that militated against spouse giving adverse testimony against the other spouse on the premise that preservation of family relationships are valued by the society more than the value of fact finding functions of the courts. This is a concept of utilitarian theory that promotes public good as social benefits from excusing witness would exceed the cost of loosing the testimony. Two undesirable outcomes of spouse compellability feared were broken marriages and promotion of perjury. However, there is no empirical evidence to support the theory of social efficacy of marital privileges. In the U.S. post Crawford12, victims of domestic violence are compellable to testify against their spouses.13 The case for compellability of spouse had been examined by Criminal Law Reforms Committee as a result of which alone PACE Act 1984 came into force. The Criminal Law Revision Committee observed that in the absence of compellability provisions, courts could not come to the rescue of wives ready to testify against their husbands charged in criminal proceedings.14 The list of offences for which spouses are compellable however does not include serious crimes against non-spouses and persons over 16 years of age. Besides, the list is highly rigid that the offences should be of the same description in spite their being varying degrees. Further, former spouses are also compellable as if they had never been married as per section 80 (5). As the act does not define husband and wife, it is likely that they be may strictly interpreted as in common law thus ignoring defacto couples. Besides there is no provision enabling a judge to warn the spouses of their rights.15 In Regina v Pearce {2001}16, the defendant challenged the testimonies of his long-term unmarried partner and his teenaged daughter who however gave conflicting versions because of which they were treated hostile and cross examined when the truth came out resulting in the conviction of the defendant. The defendant’s case was that the long-term married partner should have been treated as his wife and should not have been compelled to give evidence against an offence which was not one of the specified offences for which alone the spouse need be compelled. The appeal court rejected the arguments of the defendant and confirmed the conviction. The judge gave the reasoning as “Those words were reconsidered by Parliament as recently as 1999, when the section was re-enacted in an amended form by the Youth Justice and Criminal Evidence Act of that year. They speak of the "wife or husband of a person charged" being compellable only in certain circumstances. They do not speak of a person in the position of a wife, and Loveina Pearce was not the wife of the defendant.”17 In yet another case, Regina (Crown Prosecution Service) v.Registrar General of Births, Deaths and Marriages and another [2002}18, an under- prisoner wanted to marry a woman listed as one of the witnesses for prosecution. Although the Prison authorities had no objection, the Registrar General appealed against the decision. It was held by the appeal court that he could not marry the woman as she would become an un-compellable witness for the prosecution in the trial. However, the judges expressed the view that marriage per se would not be incompatible with compellability as the preventing a marriage would be against the public policy. They opined that marriage might be for genuine reasons such as giving legitimacy for a child already conceived outside wedlock or the spouse might be suffering from terminal disease and wanting to be married before dying. 19 In Regina v L [2008]20, father was accused of raping his 19 year old daughter in connection with which prosecution wanted the wife of the accused to give evidence which she declined under the provisions of non-compellability as a wife against her husband although she had made a short statement before the police at the time the accused was arrested. His wife declined to give evidence at the trial because the judge himself said that she was not a compellable witness. However, the prosecution wanted the statement to be entered as evidence as permissible one under section 114 of the Criminal Justice Act 2003, the accused objected to it saying that the Police should have warned her of her non-compellability and that admission of the statement as evidence would circumvent the provisions of section 80 of 1984 Act. His contention was rejected by the judge who claimed his power to admit the evidence under section 11 4 of 2003 Act in the interest of justice and convicted him for four counts of rape and assault. In appeal, it was held that the wife need not have been told about the provisions of section 80 of the 1984 Act and the statement was voluntary and was not taken by the police with an intention to call her for giving evidence at the trial. And that there was no bar on voluntary statements from a spouse.21 It was held “ on the facts, there was no injustice in admitting the statement, and the factors set out in section 114(2) of the 2003 Act led to the conclusion that the judge had been entitled to rule that the admission of the wifes statement to the police was fair and in the interests of justice.“ 22 Discussion and conclusion The common law position had been that spouse could not be compelled to give evidence against other spouse for the reasons of not marring the sanctity of marriage and of the notion that husband and wife are one entity and hence it would amount to self-incrimination which is not compellable in criminal proceedings even in respect of the accused. The Acts of 1984 and 1999 have made sweeping changes to the effect though a spouse is competent, she can not be compelled to give evidence except for the specified offences. Even after agreeing to give evidence, there are chances for the spouse to turn hostile after entering into the witness box. The cross examination need always be favourable to the prosecution. It may depend upon the ingenuity of the lawyer or the witness herself /himself or the reasons may be really genuine. What the spouse once thought might be a wrong perception and the spouse must be fully justified in changing her/his stand. The changes from the common law position now permitting a spouse to give evidence for specified offences are well placed. There is no need to remove the non-compellability as prosecution can and should always prove its case by many other evidences and circumstantial evidences if it is be proved beyond doubt. Thus, by making a spouse non-compellable, two objectives are met. One, not destroying the institution of marriage and in no way preventing the prosecution to resort to other evidences. If the spouse is made compellable, the prosecution’s job becomes easier and invariably the prosecution would only abuse the compellability. It is already happening in respect of non-spousal witnesses as the only aim of the prosecution is to obtain conviction for the accused. The concept of marriage and oneness of the couple has been there for centuries and should not be abrogated for the short-term gains at the cost of social benefits if not for the so-called sanctity of marriage alone. There is one argument that if the spouse is spared for preservation of family relationships, then father, mother, brother and sister or any close relative should also become non-compellable. But this is a highly perverted view since there is no oneness in these relationships as it is in marriage. They are inseparable failing which the family suffers, children suffer, and the society suffers. It is not so in the case of others mentioned. They are bound to separate by their own marriages. The law has now accommodated even the defacto wives to be come within the ambit of spousal privileges. Since in most of the cases, only women are exposed to this compellability requirement, one needs to mention that since women are now liberated and economically independent, it is left to their choice to be made compellable or non-compellable, if the sanctity of marriage is considered to have become anachronistic. Although there is no claim of empirical evidence of social efficacy of marriages, it would be undesirable to abandon the concept. That it would promote perjury which the spouse may resort to save the other spouse may be valid point and but that is what the prosecution is there for, to controvert. Sham marriages and perjury claim would only expose a weak prosecution and therefore they can be excuses to abandon non-compellability. The current law on compellability can be safely considered as flexible. Bibliography Journals Eleventh Report, Evidence (General) Cmnd.4991, (1972) [143-157] cited in Harris Wendy(2003) Spousal competence and compellability in criminal trials in the 21st century QUT Law & Justice Journal 23, Accessed 23 November 2010 Harris Wendy(2003) Spousal competence and compellability in criminal trials in the 21st century QUT Law & Justice Journal 23, Accessed November 23, 2010 Munday Roderick (2001). Sham Marriages and Spousal Compellability 65 J. Crim. L. 336 Heinonline accessed Nov 22 M.Howard, 15 edn (Sweet & Maxwell: London 1999) cited in Munday Roderick (2001). Sham Marriages and Spousal Compellability 65 J. Crim. L. 336 Heinonline accessed Nov 22, 20101 Edwards Susan (1989) Compelling a reluctant spouse, New Law Journal, 39 (6408) p 691, Lexis Nexis Legislation Police and Criminal Evidence Act 1984 (c. 60) The UK Statute Law Database, Accesed 23 November 2010 < http://www.statutelaw.gov.uk/legResults.aspx?> Youth Justice and Criminal Evidence Act 1999 (c. 23) The UK Statute Law Database Accessed 23 November 2010 < http://www.statutelaw.gov.uk/legResults.aspx?> Cases Crawford v Washington 546 U.S. 36 (2004) cited in Cassidy Michael R (2006) Reconsidering Spousal Privileges after Crawford, Research Paper 113, Boston College Law School accessed 23 November 2010 < http://ssrn.com/abstract=945686> Hoskyn v Commissioner of Police for the Metropolis [1978] 2 ALL ER 138 cited in Edwards Susan, (1989) Compelling a reluctant spouse, New Law Journal, 39 (6408) p 691, Lexis Nexis Regina v L [2008] EWCA Crim 973 1 WLR Regina v Pearce [2001] EWCA Crim 2834 [2002] 1 WLR 1553 Regina (Crown Prosecution Service) v Registrar General of Births, Deaths and Marriages and another [2002] EWCA Civ 1661 [2003] 2 WLR State v Norman, 155 SW 135 at 139 (Tenn., 1913) cited in Munday Roderick (2001). Sham Marriages and Spousal Compellability 65 J. Crim. L. 336 Heinonline accessed Nov 22 Others Cassidy Michael R (2006) Reconsidering Spousal Privileges after Crawford, Research Paper 113, Boston College Law School accessed 23 November 2010 < http://ssrn.com/abstract=945686> Read More