Critically consider all arguments concerning spousal compellability and conclude whether or not it is justifiable.

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In 1940, Wigmore described the rule that spouses should not be compellable as: “the merest anachronism, in legal theory, and an indefensible obstruction to truth, in practice.”  Whereas Lord Wilberforce stated: “to allow her to give evidence would give rise to discord and perjury and would be, to ordinary people, repugnant.” These are two very differing opinions, highlighting the fact that spousal compellability is a highly debatable area of law. Under section 80 of the Police and Criminal Evidence Act 1984 (PACE), spouses are non-compellable unless the offence is one which is specified. This spousal privilege has sparked intense criticism and renders the justification questionable. Utilising academic opinion, case authority and relevant sources, I will critically consider all arguments concerning spousal compellability and conclude whether or not I think it is justifiable.

Hoskyn v Metropolitan Police Commissionerwas 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.”  These proposals, along with the outcome of Hoskyn, 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.” 

Taper agrees, stating: “the modern law on this topic has been greatly simplified by the Police and Criminal Evidence Act 1984, s80.Section 80 gave the general rule that a spouse is not compellable for the prosecution of her husband, with specified offences as exceptions. The Youth Justice and Criminal Evidence Act 1999 made necessary amendments 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.” 

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. 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” The New Zealand Law Commission concur with Lord Salmon that distress would be caused. 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. A wife is only compellable if the offence is specified, 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 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 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.” 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.” 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.

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Statistically, the number of people getting married is decreasing. In an article, it was found that marriages are at their lowest rate ever. 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 ...

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Beyond the outdated nature of the law, the student should have addressed the exception to the rule in cases which involve an allegation of violence against the spouse or civil partner etc.; the arbitrary distinction drawn between married couples and long-term unmarried couples; the risks of compelling a witness to give evidence against a spouse (hostility, refusal to give evidence in contempt of court); and the usefulness of special measures to protect spouses in fear. 4 Stars.