Marilyn Stowe Blog

News: Court of Appeal upholds right of wife not give evidence against her husband

In a newly published case, the Court of Appeal dismissed an appeal by the Crown against a ruling at Blackfriars Crown Court in February.

Mr Recorder Marrin QC had ruled that the wife of the defendant in a case involving property damage could not be compelled to give evidence against him.

Under current law, Section 80 Police and Criminal Evidence Act 1984 – often referred to as PACE –  applies and spouses or civil partners of a person charged in proceedings are generally competent to give evidence for the prosecution.

The only exception is if the spouse or civil partner is jointly charged. If they are, neither is competent or compellable to give evidence, on behalf of the prosecution, against the other unless the spouse or civil partner witness has already pleaded guilty, or proceedings in respect of the spouse or civil partner witness have been discontinued.

Spouses or civil partners are competent and can be compelled to give evidence on behalf of the defendant or the defendant’s co-accused.

However, the prosecution can only compel a spouse or civil partner to give evidence for the prosecution in cases which involve:

• an allegation of violence against the spouse or civil partner;
• an allegation of violence against a person who was at the material time under the age of sixteen years;
• an alleged sexual offence against a victim who was at the material time under the age of sixteen years; or
• attempting, conspiring or aiding and abetting, counselling and procuring to commit the offences in the categories above.

If a spouse witness is divorced from the defendant or the civil partnership comes to an end before he or she gives evidence, the former spouse or civil partner is competent and can be compelled to give evidence as if that person and the accused had never been married or had never been civil partners.

Section 80 of PACE does not apply to a defendant’s partner if he or she is neither married to nor in a civil partnership with them.

The Crown had argued during the Court of Appeal hearing that the court should take the facts of an offence into consideration when considering whether or not a spouse could be called to the witness stand.

But the Court of Appeal Criminal Division rejected this view, insisting, as previous authorities had done,. that only the indictment (formal charge) should be used to judge whether a particular case was one in which a spouse or civil partner could be compelled to give evidence against the defendant.