Appeal court ruling on compellable witnesses

A wife need not be told she is not a compellable witness against her husband before interviewing her about a crime her spouse is suspected of, the Court of Appeal has ruled.

In R v L (Evidence of wife) the appeal court heard that the prosecution had called the wife as a witness. However, the judge ruled she was not a compellable witness against her husband, under s 80 of the Police and Criminal Evidence Act 1984, and the wife declined to testify.

The appellant submitted that police should have told the wife she could not be compelled to give evidence against her husband before taking a statement. However, the appeal court saw no basis for such a requirement. The need to caution a suspect arose from the fundamental principle that a person could not be required to give evidence that might incriminate himself. The policy against compelling a wife to give evidence against her husband was not the same, it ruled. To caution a wife before taking evidence from her could inhibit the investigation of crime.

The court added, however, that if a question was raised as to whether it was in the interests of justice to admit a wife’s statement, the prosecution’s hand would be strengthened if it could show the wife made her statement voluntarily, having been told she was under no obligation to make it.
The court conceded there was an obvious paradox in excusing the wife from giving evidence, but then placing before the jury in the form of a hearsay statement the very evidence she did not wish to give. In any such case, whether or not it was just to admit the statement depended upon the facts, the court concluded.

Philip Mott QC, from Outer Temple Chambers, says: “This is another decision which underlines the sea change in the admissibility of hearsay evidence brought about by the Criminal Justice Act 2003. The emphasis is now wholly on reliability. There was no question of the automatic exclusion of this evidence, simply because the wife no longer wished to support the prosecution. The only issue was whether it was in the interests of justice to admit the statement, taking into account the nine factors set out in s 114. There was little argument about the application of these in the particular case.”