Criminal Evidence Student 183246
This assignment considers the law respecting the competence and compellability of spouses in criminal proceedings and whether subsequent reform regarding the compellabilty of the spouse is justified. Weber refuted cal1966's rationalisation .
The suitability of the law relating to evidence by spouses in criminal proceedings has been subject to much debate. There have been concerns raised as to whether the rules of spousal compellability are in accordance with the values of a modern society, and whether Parliament has struck the right balance between public policy interests and the preservation of the marriage. In order to get a clear perspective of the issue it is necessary to look at the, previous situation regarding spousal competence and compellability, in order to review the reforms that we have today.
The historical background of the common law rule of spousal incompetence can be traced back to the 17th century where it was an established fundamental principle that generally a wife could not give evidence in a criminal matter against her husband. The law viewed married couples as a single unit where the wife's legal identity and interest was included with that of the husband. Since the accused was incompetent to testify because of his interests in the trial, the law followed the logic that this extended the rule to the spouse who would then be unable to testify against her husband1. In Hale's Pleas of the Crown2, four reasons are given for the general incompetency of a wife: -
(i) the unity of husband and wife;coba bar sebabaw orba bak inba foba ba.
(ii) if the ordinary rule relating to witnesses applied it would lead to implacable
discord and dissension;
(iii) the great danger of perjury; Weber refuted cal1966's rationalisation .
(iv) the extreme hardship of the case and a feeling of natural repugnance in
applying the ordinary rule.
During the 19th century various enactments, were put in place, which resulted in the spouse becoming competent for the prosecution but only in certain cases. For example the Criminal Evidence Act 1898 provided in section 4, that the spouse would be competent for the prosecution in cases, such as the property of the wife, bigamy, offences against children and most sexual offences against third parties, but she would not be compellable, Leach v R 1912 AC 305. At common law she would be both competent and compellable in cases of violence against her, with the exclusion of the above provisions, therefore the wife of the accused was not usually competent or compellable to give evidence for the prosecution. This would also include those who were judicially separated Moss v Moss 1963 2 QB 799.coef efr seefefw oref efk inef foef ef;
The judgement in the case of R v Lapworth 1931,3 appeared to conflict with the previous view of the common law position at that time where, the spouse was made
both competent and compellable for the prosecution in a case of an alleged charge of intent to do grievous bodily harm.coga gar segagaw orga gak inga foga ga.
On appeal to the House of Lords the conviction was overturned as it was held that the spouse was not compellable for the prosecution. What the case did clarify was the fact the competence and compellability was not synonymous. Divorced spouses under the common law at that time were also in the same position as a spouse so they were neither competent nor compellable for the prosecution R v Algar4.
Reasons for this position may have been that the wife could suffer serious social and economic difficulties if she were compelled to testify. Also it may have been viewed that to make a wife compellable could cause her to perjure herself in court. On the other hand it could be said that the compellability of a wife to testify against her husband may have been objectionable from the view of the judiciary who were in any event predominantly male. Nevertheless the law was still a disorganised mixture of statue and common law, therefore Parliament commissioned an inquiry to be carried out by the Law Revision Committee.coac acr seacacw orac ack inac foac ac.
Subsequently in 1972 the Committee in its 11th report, (Chaired by Lord Edmunds) completed its findings with regard to the law of competence and compellabilty of the wife for the prosecution.
It came to the conclusion that it unnecessarily deprived the courts of the evidence of a wife who was prepared to testify against her husband. They adopted the principle that the competent wife would be no different to any other witness, R v Mount5. Under theses circumstances they recommended that she be competent in all cases unless she herself was also on trial.
With the matter of compellability on behalf of the prosecution, the Committee agreed that a wife should not be made compellable to testify against her husband as this could disrupt the marriage relationship, endorsing the common law rule based on the need to preserve the marriage. Here there was an attempt to balance the two competing interests of the preservation of the marriage and the investigation of crime. Conversely it may be said that where a wife is actually prepared to testify against her husband it would be evident that there would be no relationship to preserve in any case. In the case of a spouse who is competent but not compellable he or she can waive the right not to testify for the prosecution. This waiver will only be successful if the spouse is aware of the right not to testify. A rule of practice had developed where the judge had to warn the spouse in the absence of the jury that he or she were not required to testify in the proceedings. This practice was laid down in R v Acaster 1912 7 Cr App R 187. In the more recent Court of Appeal case of R v Pitt 1983 QB 25, treated the practice where the judge 'ought' to exercise his discretion to ensure a fair trial and issue a warning in appropriate situation. The warning would be given before the person would take the oath. There were however exceptions to the rule of compellability, where violence against the spouse personally or children under 16 years of the household, would in that case then make her compellable for the prosecution.
The presumption was that compellability under these issues would make it easier for the wife as she would not have any choice, the theory being that her husband, knowing this would be deterred from intimidation or persuasion in order for her not to testify.
Other reasons the Committee gave for this position, were that serious cases coupled with the reluctance of the wife to testify, could cause great difficulty in proving the offence where the wife would be the only witness, R v Deacon 19736
This situation emerged in the case of Hoskyn v Metropolitan Police Commissioner 19797 the House of Lords considered a case where the woman had who was unwilling to give evidence was called as a prosecution witness. She had married the man charged with wounding her with intent to do grievous bodily harm, two days before his trial. The wounds inflicted on the wife were serious. She was found to have sustained two stab wounds in 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 her forearm. Despite these appalling injuries the concept of privacy of the family were to have precedence over the spouse who as an individual should have had the basic right to protection. However Lord Wilberforce in Hoskyn stated, to allow a wife to give evidence against her husband "would give rise to discord and to perjury and would be to ordinary people repugnant".
Thus it was held, by majority, (with Lord Edmunds dissenting), that the woman was not a compellable witness, despite the fact that it was thought that a wife was compellable at the existing common law, where a husband was charged with violence against her person.
Lord Edmunds in his dissent argued that where the wife would not be compellable it could present the risk of the police being reluctant to investigate domestic violence as they would any other violent crime, as compellable witnesses would then be absent.
Lord Edmunds evidently had a realistic grasp of the situation, for in many cases of domestic violence the offences are more than likely to be committed in private, hence the wife, if she were not made compellable would be at the mercy of the violent husband. Consequently the police were generally then reluctant to intervene between married partners, which in turn only served to further discourage the criminal law from having a proactive role in domestic violence. It became clear that spouses were not being afforded the equivalent protection as that for cohabittees who were always compellable for the prosecution.
Parliament eventually considered the Law Revision committee's Report and took on board many of the recommendations which resulted in section 80 of the Police and Criminal Evidence Act 1984 (PACE).
The strongly held opinion by the House of Lords in Hoskyn was subsequently reversed by Parliament in (PACE) 1984 by virtue of section 80 where cohabittees were still to be treated as ordinary witnesses as s80 assumes term 'wife or husband' to those validly married. By virtue of this section the range of compellable offences was extended to include offences against the person of all children under sixteen whether they are children of the household or not. Prior to this only children of the household would have been included. Thus under the Act a spouse would be compellable under Section 80 (3) PACE where it: -
a) Involves an assault on or injury or threat to wife or child who was at the time of the offence under 16,or
b) is a sexual offence on such a child
c) if it consists of attempting or conspiring to commit an offence falling into to paragraphs above.
Offences which fall in a), b), c) of PACE s80 (3) are known as compellable offences. The fact that the spouse would only be compellable for the offences mentioned above could result in vagueness within the Act where additional charges were involved, for example, handling stolen goods. Under the Act the spouse would be compellable with regard to the charge of violence but not for the stolen goods as there would be no compellability on that matter. There could also be problems where the compellable offences were not given a narrow interpretation, for instance s 80 (3) (a) uses the term "offences involving an assault" would be much wider than a charge of assault as
in the case of R v YEO 1951 1 All ER 864 living off immoral earnings could fall within the definition of an offence.
The compellability of the spouse however seems to reflect the seriousness in which these specified offences are viewed. Yet it may also be said that murder or rape of persons over the age of 16 years such as the elderly would be equally serious. The question that may be asked here is rather than being confined to a list of specified offences why not give consideration to important factors such as the nature of the offence. The possible danger here is that it could lead to unequal treatment of spouse witnesses and accused due to the differences in the exercise of discretion by the judges. The lesser evil then would be to retain the list of specified offences but it would still be possible to broaden the scope of the victims with regard to the sexual offences category. The rape of an elderly woman is just as heinous as the rape of a child of 15 years as both are in a vulnerable and defenceless position. Conversely it is also important that judges use their discretion where the likely significance of the spouse's evidence, balanced with the possible damage to the matrimonial relationship, would not be critical to the prosecution. The law in this respect has quite a difficult problem in balancing these issues. Further refinement to the law regarding
Competence and compellability of witnesses in criminal proceedings emerged where,
PACE 1984 was amended and re-enacted by paragraph 13 of schedule 4 of the Youth Justice and criminal Evidence Act 1999 (YJCEA).
Under the 1999 Act the general rule of competence in criminal proceedings is in s.53 (1) which declares that subject to exceptions, all persons (what ever their age) are competent to testify at every stage in criminal proceedings.
The test of competence is laid down in S 53(3), which provides a two-stage test: -
i) Does the person understand the questions put to him,
ii) and whether he can give answers that can be understood.
Ultimately the Judge himself would determine the issue of competence and also
compellable offences for the purpose of s80 PACE which became to be known as 'specified offences'.
With regard to compellability, the references to section 80 of PACE were re-enacted by the YJCEA 1999, where Section 80(2) provides that the spouse is compellable to testify subject to the exception in s80 (4) where the spouse is also charged in the proceedings. This applies only to cases where the couple are charged with the same offences and not where they are tried in the same proceedings for different offences, where the spouse would be competent where they were charged with different offences.
With all the subsequent refinements of the law that have just been discussed it was hoped that the competence and compellability of a spouse to give evidence against a violent partner would, produce effective results for the successful prosecution of violent assaults under the specified provisions in Section 80(3) of PACE. The compellability of the spouse to testify was thought to eliminate the need for the spouse to choose between protecting his or her mate and testify for the state with the idea that it also reduced the potential pressure and undue influence by the accused's spouse. Conversely it may also put the witness spouse at risk of threat or injury from the accused that may not understand or even care that the witness did not have a choice. It is well known that there is little protection in the pre- trial period and that this period is often a highly dangerous one with the result that withdrawals are made by the complainant in cases of domestic violence not because the spouse wants to forgive, but out of sheer fear. In the case of R v Renshaw8 the spouse of the accused was sent to prison in contempt of court by Judge Pickels who refused to allow the prosecution to offer no evidence with regard to the brutal assault that she
had endured. This threat to the victim is often counter productive, as all the woman is trying to do is protect herself from further violence, where if it boils down to a short stint in prison or the prospect of serious injury who can hold her reprehensible for her choice.
As far back as October 15 1986 the home Office released a circular 69/1986. This circular had responded to a commissioned report by the government on "Violence against Women" The circular stated "There must be an overriding concern to ensure the victims of domestic violence and to reduce the risk of further violence both to the spouse and to any children that may be present, after the departure of the police from the scene of the incident..." This gives a large scope to the Chief Officers of Police to act it also provides that they may do nothing at all. The Home Office have clearly not addressed the seriousness of the situation leaving the compellable spouse both vulnerable and powerless where he or she may also suffer the threat of fear and intimidation in the present or the future.
If all the refinements of the new law now also encompassed in the YJCEA 1999 were supported by severe penalties of the interference with the administration of the prosecution, of their witnesses and those who frighten them it would have served as a vital deterrent. This together with the provision of safe accommodation and also counselling may help to a degree alleviate a traumatic situation for the witness.
To conclude, in the light of Hoskyn the subsequent reform of the law relating to spouse compellability maybe justifiable, even if from a utilitarian standpoint as violent criminals need to be brought to justice where incompetence and non- compellability would otherwise serve as obstacles to the truth. However it is also against natural justice to compel a witness who is then endangered without any offer of protection or support. It is apparent that this situation still needs to be addressed and acted upon. There is no doubt that there is a fine balance in favour of and against compellability however society are also entitled to be protected from violent criminals that pray on persons weaker than themselves thus may be said that it is in the public interest of a modern society that the spouse is both competent and compellable for the prosecution in certain cases.
upon Littleton (1628), section 6b where it is stated that 'husband and wife are
looked upon as one flesh and that their giving of evidence against one another
would lead to implacable discord and dissension and might be the means of great
2(1800), vol. 1, p. 301
3 Until 1931 there had never been a case in which a wife was made both competent and compellable to give evidence against her husband on a charge of his personal violence towards her where she had been reluctant so to do. Lapworth 1931 1 K.B 117; 22 Cr.App.R87.
4 1954 2QB 279
5 1934 24 CR App.R.135
6 1 WLR 696
7 A.C. 474
8 CA 21/09/89