Whether the Current Law on Spousal Compellability Is Justifiable - Essay Example

Critically Consider Whether the Current Law on Spousal Compellability Is Justifiable With regard to giving legal evidence in court, compellability relates to whether as a matter of law a witness can be legally obliged to give evidence irrespective of whether they wish to do so1. Furthermore, the law on compellability is dependent on whether the trial is a criminal or civil procedure and in criminal trials a defendant’s spouse will be compellable as a witness for the defendant and as a witness for the prosecution against the defendant depending on the nature of the offence2. The law of spousal compellability is governed by the common law and statute and has created controversy with regard whether it remains justifiable in the contemporary societal framework, particularly in light of the complex nature of familial relationships. For example, in cases involving violence it doesn’t always follow that a spouse will be willing witness and if children are involved in the family set up, the compellability principles could create negative repercussions for the witness in the long term3. The focus of this paper is to critically evaluate whether the current law on spousal compellability is justifiable. To this end, this paper will firstly consider the common law and statutory rules, followed by a discussion of proposals for reform on the spousal compellability rule with specific reference to the Scottish recommendations to amend the law on the compellability of spousal witnesses by analogy to the position in England and Wales. With regard to the definition of spouse under the compellability rules, under section 84(1) of the Civil Partnership Act 20044, the provisions relating to spousal compellability under section 80 of the Police and Criminal Evidence Act 19845 (PACE) apply equally to a civil partner of the defendant in addition to a spouse. Therefore both civil partners and spouse are covered by the compellability provisions. Additionally, the law distinguishes between civil and criminal cases6. For example, in civil cases spouses must be competent and compellable7however different considerations apply in criminal cases8. However, the common law position has often been criticised for being unsatisfactory and Murphy comments that “there had always been felt a slight natural repugnance at the thought of spouses giving evidenced against each other”9 on grounds of risks of perjury and the risks to the validity and credibility of any such evidence given10. This sentiment is further reflected by the dissenting speech of Lord Edmund Davies in Hoskyn v Commissioner of the Police for the Metropolis11 where he attacked the very idea of compelling spouses to give evidence against each other. The unease with the justification of spousal compellability and its potential risks to the credibility of evidence given has resulted in judicial deviation from the strict legal principle on an ad hoc basis12. However, this has undermined legal uncertainty as no specific guidelines have been set for the grounds upon which such deviation from the strict rule is allowed. This not only perpetuates legal uncertainty but reinforces the arguments against the justification of the spousal compellability rule. Additionally, the changing family environment has led to a significant increase in cohabitation, which as a result leads to potential discrimination at law between couples in committed relationships under the compellability rule13. As highlighted above, whilst civil partners are included, the definition of spouse is still dependent on the English common law definition. For example, in Pearce14, it was argued unsuccessfully that Article 8 (1) of the European Convention on Human Rights (ECHR) meant that English law shouldn’t distinguish between cohabitants and spouses. Additionally, it was argued that under Article 8, a spouse should be non-compellable as a witness. With regard to the compellability of a witness as a prosecution witness under the common law, the House of Lords determined in Leach15that where a spouse was competent on grounds of the requirements of the Criminal Evidence Act 1898, the spouse was not compellable. However, in Lapworth,16it was held that a spouse was compellable for the prosecution. The issue was finally resolved in the Hoskyn decision17where the House of Lords asserted that even where a spouse was competent under either the common law or statute, they could never be compellable as a witness for the prosecution. Nevertheless, the judgment of the majority in Hoskyn and Lord Edmund Davies significantly influenced the statutory provisions resolving the legal position in Section 80 of PACE. For example, on the one hand, Lord Salmon argued that the common law position regarding spousal competence where the defendant had committed an offence against their spouse was intended to provide protection and shouldn’t be forced particularly where there is a likelihood of the couple continuing to stay together after trial. As such, Lord Salmon felt that there was a risk that compulsion could destroy marriage18. On the other hand, Lord Edmund Davies felt that some offences were too serious to compromise compellability and that spousal compellability could actually provide protection to a spousal witness to avoid intimidation or coercion19. However, the other side of this argument is that an intimidate spouse may not provide proper evidence at trial due to coercion and fear of recriminations. From a statutory perspective, if we consider the historical development of the legal position, section 1(c) of the Criminal Evidence Act 1898 addressed spousal competence but did not evaluate compellability on behalf of the defendant. However, Section 4(1) of the Act imposed spousal compellability for the prosecution and the defence in specified circumstances such as violent and sexual offences against children. Subsequent developments in this area of law extended the rule to other offences such as the Sexual Offences Act 1956 and section 3 of the Theft Act 196820. As a result of the statutory developments regarding compellability, the uncertainty of judicial approach at common law was beginning to become “nothing more than an inconvenient anachronism”21and the central concern at the heart of spousal compellability was to protect against spousal intimidation in domestic violence and sexual assault cases. This came to a head after the strong opinions and arguments put forward by the House of Lords in the Hoskyn case, which triggered Parliament’s settling of the issue of competence and spousal compellability in the form of Section 80 of PACE. The original section 80 provisions have been amended by section 80(2)-(4) of the Youth Justice and Criminal Evidence Act 199922. Section 80 of PACE as amended provides that: “(2) In any proceedings the spouse or civil partner of a person charged in proceedings shall, subject to subsection (4) below, be compellable to give evidence on behalf of that person”23. Additionally, Section 80(2A) provides that: “In any proceedings the spouse or civil partner of a person charged in proceedings shall, subject to subsection (4) below, be compellable- To give evidence on behalf of any other person charged in the proceedings but only in respect of any specified offence with which that other person is charged; or (b) to give evidence for the prosecution but only in respect of any specified offence with which any person is charged in the proceedings24”. Additionally, Section 80(3) asserts that “(3) In relation to the spouse or civil partner of a person charged in any proceedings, an offence is a specified offence for the purposes of subsection (2A) above if— (a) it involves an assault on, or injury or a threat of injury to, the spouse or civil partner or a person who was at the material time under the age of 16; (b) it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or (c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b) above”25. Therefore, as a result of the increasing influence of policy considerations the Youth and Criminal Evidence Act 199926 has introduced more specific rules regarding spousal compellability. In general therefore the defendant’s spouse is always competent as a witness and generally compellable only on behalf of the defendant. With regard to compellability for the prosecution or any other defendant in a situation specified in section 80(3), subsections (4) and (4A) maintain the legal principle that if the spouse is charged with the offence in the relevant proceedings, then they will be compellable. Additionally section 80 of PACE abolishes the rule in Monroe v Twistleton27 and provides that “in any proceedings a person who has been but is not longer married to the accused shall be compellable to give evidence as if that person and the accused have never been married. Whilst the purpose of the statutory provisions has been to clarify the uncertainty of ad hoc common law decisions, the central criticism of the rules on compellability are the extent to which they really provide protection in application28. It is evident that the motivation behind the measures in PACE and the Youth and Criminal Evidence Act 1999 was to increase protection against witness intimidation in offences involving spouses. It was felt that the compellability rule would protect a spousal witness against coercion or intimidation and safeguard against recriminations from their spouse after trial. However, whilst this is clearly a meritorious argument, the problem is that in practice it is difficult to quantify how far the compellability provisions actually operate to provide protection. Additionally, the distinction between cohabitees and spouses in the contemporary family paradigm creates scope for discrimination at law under the compellability rules. Accordingly, it is submitted that there needs to be a reconsideration and review of the rules on spousal compellability and if consider the position in Scotland by analogy, there was a detailed consultation in 2006 on potential reform of the spousal compellability rules29. The Consultation paper reflects the concern submitted in this paper that the compellability rules create scope for undermining the credibility of evidence at trial and can have the converse effect of “abusing the institution of marriage”30. Arguably the fundamental flaw in the compellability provisions is that whilst implemented on policy grounds to protect spouses and children due to the alarming increase in child abuse case; in practice the central problem is the fact that policy and principles do not always sit easily with the reality of complex family issues. For example, the Scottish Consultation paper referred to the position in both Scotland and England and Wales and commented that “the current rules have caused difficulty, particularly where the crime libelled is a crime against a child and there is important and material evidence to be obtained from a spouse”31. The Consultation paper also reinforced the discriminatory nature of the distinction between cohabitants and spouses and the lack of justification for extended the rule to spouses that are separated. On the other side of the spectrum, as the compellability rules are applicable within specified circumstances depending on the nature of the offence, there have been cases where the institution of marriage has been undermined due to exploitation of the compellability principle. For example, in cases where a spouse cannot be compelled, there have been reported instances of defendants marrying their partner in order that the partner cannot be compelled to give evidence at trial32. This clearly abuses the institution of marriage and enables abuse of due process as this could result in the court being unable to address all the relevant issues in the case. The main reform suggested by the Scottish proposal was to repeal the compellability provisions and the Scottish Law Society did not agree with these proposals on the basis that to repeal the provisions would undermine the long established policy justification for the rule. Furthermore, the Law Society commented that the rule is intended to protect children and spouses and prevent the risk of perjury. However, the current rules also pose risks to due process and credibility of evidence. The above analysis demonstrates that the rules on spousal compellability have been complex and based on policy considerations to protect coercion and intimidation. Additionally, whilst the objectives of the rule have been to prevent dilution of evidence and protect against the risk of perjury, the practical reality has enabled abuse of the system by defendants where their partner is a main witness. Furthermore, in cases where spouses are compellable within the statutory specified scenarios, there have been reports of difficulty of applying the rules in practice particularly where cases involving children are concerned. As a result, this has undermined the policy justification for the compellability rule and raised awareness as to whether reform is needed in this area of law. Overall, it is submitted that the scope for abuse and difficulty in applying the rules in practice clearly negate the policy justifications for the compellability rules. This is further reinforced by the distinction between cohabitants and spouses and the failure of the legal provisions to adequately address the complex realities of family relationships. It is always intrinsically difficult to legislate for social issues and the law has to try and find a balance between social reality and certainty of legal principles. However, it is submitted that the principles of compellability as they currently stand fail to address the realities of complex family issues and as such negate the justification for their continued applicability. On this basis, a serious reconsideration is needed to evaluate whether the current rules on competence and spousal compellability remain workable in the contemporary environment to achieve the intended policy objectives. BIBLIOGRAPHY Allen, M (2007) Textbook on Criminal Law, 9th Edition Oxford University Press. Herring, J. (2007) Family Law. Pearson Education Herring, J. & Choudhury, S. (2010). European Human Rights and Family Law. Hart Publishing. Keane, A. (2008). The Modern Law of Evidence. Oxford University Press Munday, R. (2001) Sham Marriages and Spousal Compellability. 65 Journal of Criminal Law, 336 Murphy, P (2007). Murphy on Evidence. Oxford University Press Consultation Paper on Proposals to Amend the Law on Compellability of Spousal Witnesses, (2006) Retrieved at www.scotland.gov.uk accessed November 2010. Legislation Police and Criminal Evidence Act 1984 Youth and Criminal Evidence Act 1999 Civil Partnership Act 2004 Accessed at www.opsi.gov.uk November 2010 Read More