Spousal Compellability? Support for Marriage or Complete Myth

Topics: Crime, Criminal law, Law Pages: 7 (2217 words) Published: April 29, 2014

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Evaluate R v Pearce [2002] 1 Cr App R 39 and the
wider law on spousal compellability.

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 spouse2, no such universal compellability arises for the prosecution. The testimonial privilege was once an undefeatable rule of the common law3 unless it involved violence against the other spouse4. Arguably, the institution of marriage5 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 criticisms7, the spousal privilege was once well founded on numerous rationales, as highlighted by the House of Lords in Hosykn8. 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 husband9. 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 developed12. Based on the Committee’s recommendations, the scope of compellability was extended where the offence fell within a specified list in S.80(3)13. 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’14. Whilst each difference will be discussed in turn, the decision in R v Pearce15 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 facts19. The increasing flexibility taken to the judicial interpretation of families in their preference of substance over form20 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”22. 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...

Bibliography: R v Pearce [2001] EWCA Crim. 2834; [2002] 1 Cr. App. R. 39
R v Birks [2002] EWCA Crim 3091; [2003] 2 Cr App R 7
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
Wigmore J, Wigmore on Evidence (1st edition, McNaughton 1961)
Newspaper Articles
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)
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