Spousal Compellability? Support for Marriage or Complete Myth
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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
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
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) Articles 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)