Civil Partnership Act

Hoskyn v Metropolitan Police Commissioner [5] was the first significant step towards the PACE. This case concerned a marriage two days before the trial date, the defendant was convicted and he appealed on the grounds that his wife should not have been a compellable witness. The House of Lords ruled that when her husband is charged with violence against her, she is competent but not compellable. There were dissenting judges and vast criticism because of this decision and this ultimately led to a reform in the law. The Criminal Law Revision Committee proposed changes; they stated: “the previous rules on competence and compellability unnecessarily deprived the courts of the evidence of a wife prepared to testify against her husband.” [6] These proposals, along with the outcome of Hoskyn [7] , led to the reform of the law with the enactment of the PACE section 80. Creighton comments:

“Section 80 of PACE has effected significant changes to the law…In particular, it has overturned the assumptions of the previous law, namely that a wife should be competent for the prosecution only in exceptional cases, and should never be compellable.” [8]

Taper agrees, stating: “the modern law on this topic has been greatly simplified by the Police and Criminal Evidence Act 1984, s80. [9] ” Section 80 gave the general rule that a spouse is not compellable for the prosecution of her husband, with specified offences as exceptions. [10] The Youth Justice and Criminal Evidence Act 1999 made necessary amendments [11] to the PACE, and following this, the Civil Partnership Act 2004 extended the rule to include civil partners. It is evident that the reforms were in dire need, however, it is heavily debated whether the current law on spousal compellability is justified.

Lord Coke stated:

“It hath been resolved by the justices that a wife cannot be produced against either or for her husband quia sunt duae aimae in carne uno and it might be a cause of implacable discord and dissension between the husband and the wife, and a means of great inconvenience.” [12]

This is the main reasoning behind the rule that spouses should not be compellable, the preservation of marital harmony for there are two souls in one flesh [13] . Marriage is a fundamental pillar of society and the matrimonial relationship should be treated with the upmost respect. The institution of marriage is more important for public interest rather than a judicial result; spouses should be allowed the privacy that marriage entails. Lord Salmon comments: “It seems to me altogether inconsistent with the common law’s attitude towards marriage that it should compel a wife to give evidence against her husband and thereby probably destroy the marriage” [14] The New Zealand Law Commission concur with Lord Salmon that distress would be caused. [15] A wife may incriminate her husband when giving evidence, which could put her at risk. Also, if a wife was compelled to give evidence against her husband, this may result in perjury. [16] A wife is only compellable if the offence is specified, [17] this is mainly because crimes in the household would probably go unpunished because of the lack of other adult witnesses, and the wife may be reluctant to testify because she may have played a part in the offence.

Section 80 of the PACE [18] specifically refers to a spouse or civil partner; there is no mention of cohabitees. Therefore, cohabitees will be compellable even if they live identically to a married couple; this inevitably questions the justification of the law on spousal compellability. R v Pearce [19] is the relevant authority in this area. The case concerned whether the section 80 privilege should be extended to include those in the position of a spouse. The Court of Appeal (CoA) rejected the argument that failing to extend the privilege would be in breach of article 8 in the Convention Rights, they pointed out that section 80 is clear in its language and that there is no room for uncertainty or interpretation. Ms Joseph who appeared for the Crown stated: “the words are clear and are not capable of being expanded so as to embrace a relationship to which they plainly do not apply.” [20] She also argued: “if the concession were to be widened it is not easy to see where logically the widening should end. That objection may not be insuperable but the possibility of serious limitations being placed upon society’s power to enforce the criminal law is obvious.” [21] The courts are firm in their approach to spousal compellability, that there is no room for interpretation. There are many commentators who disagree and think the current situation is unjust.

Statistically, the number of people getting married is decreasing. In an article, it was found that marriages are at their lowest rate ever. [22] This is evidence that more people are choosing to cohabit rather than get married. Perhaps the spousal compellability rule was fair when marriages were at their peak, however at the present time, it seems unjust. Agreeing, L’Heureux-Dubé J argues that cohabitees should be seen as the same as married couples under the law:

“Family means different things to different people, and the failure to adopt the traditional family form of marriage may stem from a multiplicity of reasons all of them equally valid and all of them equally worthy of concern, respect, consideration, and protection under the law.” [23]

Furthering this argument, Mr Wood, in Pearce [24] submitted that “in 2001 the position of a marriage certificate should not be the touch stone of compellability.” [25] This all points to the fact that in the present day it is unrealistic to view cohabitees as any different from married couples, and therefore it is not justifiable to allow only married couples to benefit from non-compellability when cohabitees are, essentially, no different. BC Naudé suggests: “Perhaps it is best to define today’s family in terms of the values associated with it and the purposes it serves.” [26] The current law is outdated and unfair; a change is due.

The fact that married couples benefit from non-compellability generates potential for sham marriages, where individuals get married before the trial in order to benefit from the rule. R v Registrar General of Births, Deaths and Marriages [27] involved a marriage before the trial. The CPS asked the Registrar General to delay the marriage, the Registrar General refused and so the CPS sort judicial review for refusing to delay. The CPS won the judicial review, but the Registrar General appealed and the court ruled in favour of the Registrar General. The issues in the case were whether it was in the public interest for the Registrar General to delay the wedding, and if it was against public interest to allow non-compellability. Maurice Kay J argued that if the witness was to marry and thus become non-compellable, it could “facilitate the avoidance of liability for a serious crime.” [28] He also pointed out that simply delaying a marriage does not infringe on article 12 of the European Convention, the right to marry. His arguments were dismissed, however, how can the current law of spousal compellability be justifiable to allow potential sham marriages to take place in order to avoid compellability? There are numerous responses to this question.

Waller LJ stated that if Parliament intended for marriages to be delayed for public interests, [29] then it would have been provided for in PACE. [30] He continues: “the right to marry has always been a right recognised by the laws of this country.” [31] Dismissing Maurice Kay J, he argued that because the defendant had yet to be tried, “it could not be right to describe such conduct as conduct seeking to avoid criminal liability for a serious crime.” [32] Finally he points out that anomalies would develop if the marriage had been delayed, for example, if the defendant had been allowed bail, he could have married then. There is also the question of how do the courts know if a marriage is real or sham? It would be very difficult, almost impossible, to inquire into the real reasons of a marriage. [33] Roderick Munday furthers on this point: “Even if the primary objective is to render one of the parties non-compellable, this does not mean that the marriage was not freely entered into.” [34] These arguments attempt to justify possible sham marriages, however, it has to be said that the courts should at least have some discretion and be permitted to delay a marriage if the circumstances see fit. At present, even if the motives for marriage are justified, there will be scenarios where married couples will take advantage of the non-compellability rule. Therefore with regards to potential sham marriages, I feel that the current law on spousal compellability is not completely justified and an element of discretion [35] should be included.

R v L [36] centred on two issues regarding spousal compellability. First, did the police have a duty to warn the wife that she was a non-compellable witness? Second, were the prosecution allowed to adduce in evidence the wife’s statement to police? Mr Phillpotts for the appellant argued that if the police did not tell the wife of her non-compellability, it would be contrary to section 80 of PACE. [37] In the judgement of the court, Lord Phillips made it clear that there is no requirement to tell a wife of her non-compellability [38] , explaining: “To caution a wife before taking evidence from her could inhibit the investigation of a crime.” [39] However, I am inclined to agree with Mr Philpotts that this is contrary to section 80. It would be almost impossible for a spouse to benefit from the spousal compellability rule, which was enacted to protect marital harmony, when they are oblivious of their rights (in circumstances until the spouse takes the oath [40] ).

In R v L [41] , despite the spouse being non-compellable, the judge ruled that it was in the interests of justice to admit a previous police statement in evidence under the Criminal Justice Act 2003 [42] . Lord Phillips stated: “Compelling a wife to give evidence is not the same thing as permitting another witness to give evidence of a voluntary statement made by the wife in the past. Thus section 80 of PACE does not pose a legal bar to the admission of such evidence.” [43] A spouse cannot be forced to testify at trial, yet the police do not have to tell the spouse that she is non-compellable. Not alerting her, and using section 114 of the Criminal Justice Act to bring her statement in as evidence completely undermines section 80 of PACE. A fairer situation would have been for the CoA to say she is not compellable, but call on Parliament to revisit the issue of spousal exemption. R v L [44] is a perfect example that the current law on spousal compellability is not justifiable. The benefits of spousal compellability are severely weakened, first, by allowing other evidence to be admitted to overcome the fact that the spouse is non-compellable, and second, by the police keeping the spouse in the dark with regards to her rights.

Under section 80(3) of PACE [45] , a spouse is will only be compellable if the offence is specified. The section [46] has given more protection to children; however it only applies to children “under the age of 16.” [47] It is questionable as to why there is an arbitrary age limit, and the consequences were seen in R v L [48] . There is an assumption that only people under the age of 16 are vulnerable, for example, Harold Shipman’s victims were elderly, his wife was present at one of the murders, however because the victims were not under 16 the wife was not compellable. Creighton asks why section 80(3) [49] is so limited: “Are not murder or rape of those aged sixteen or more at least as serious?” [50] Expanding on this, Taper argues that there is no distinction between offences involving injury to children and those of sexual offences, explaining: “the accused’s wife is compellable against him if he kissed a 15-year-old, but not if he raped and murdered a 16-year old.” [51] However, there is an advantage to a spouse being compelled, as Naudé explains: “If a victim is compelled to testify, the vindictive spouse will have less incentive to try to control or intimidate the witness spouse.” [52] Even if a spouse is compellable, it is impossible to know if she is testifying truthfully, though this is the case with all witnesses. The current exceptions are unsatisfactory and I believe the answer lies in giving court discretion, rather than justifying non-compellability.

The case of Hoskyn [53] had a great influence on the current law on spousal compellability, change was needed, and it came in section 80 of PACE [54] . The preservation of marital harmony was one of its main justifications. The general rule is that spouses are non-compellable unless the offence is specified. [55] Subsequent case authority and academic commentators highlight debatable areas, making the justification of the current law on spousal compellability questionable. Pearce [56] brought forth great criticism because cohabitees could not benefit from non-compellability, despite living identically to married couples. Statistically marriage is on the decrease, and more are choosing to cohabit, thus making the current law outdated and unjustified. The Registrar General [57] case dealt with the issue of potential sham marriages, where the CoA found that marriages could not be delayed in order to prevent using the spousal compellability rule. Waller LJ insisted that it was not in public interest to interfere with marriage; however, inevitably some individuals will use the spousal compellability rule to their advantage by getting married before the trial. I therefore believe that judges should have discretion in each individual case to prevent this from happening. The judgement of R v L [58] saw that police did not have to warn spouses that they were non-compellable, and that other evidence could be adduced to bypass non-compellability. Not telling a spouse of her non-compellability and allowing other evidence completely undermines section 80. [59] Section 80(3) [60] is very limited in whom it protects and it is unsatisfactory. It is clear that the current law on spousal compellability is outdated. The non-compellability privilege shows excessive concern for an institution in decline, fewer people are getting married, [61] and cohabitation and divorce are increasing. One of the main reasons for the law on spousal compellability was to preserve marital harmony. However a marriage would not be harmonious if the case involved financial problems or violence. If the state does not want to disrupt marital harmony, perhaps they should not investigate married couples at all! If the non-compellability privilege was removed, it is highly unlikely that it would change the way husbands and wives communicate. [62] It is evident that the current law on spousal compellability is unjustifiable, I wholeheartedly concur with Naudé in his summary: “The rules against compelling a spouse to testify can no longer be justified. They are based on an outdated assumption, their effect is illogical for the most part, and they are constitutionally unsound.” [63] The law needs to change.

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