Compellability

Compellability

1. Definition: the extent to which a witness can be forced to give evidence at trial, even if they do not wish to do so - i.e. giving evidence against your husband/wife

2. Spouses and civil partners

   • S.84 Civil Partnership Act 2004
   • Historically, natural repugnance to expect a husband to testify against a wife/vice versa
     • Spouse: lawfully marriage to the accused at the time when he/she is called to give evidence
   • Cohabitation not recognised

3. Khan

   • Second wife not deemed as 'legally married'
   • Pearce (2002)
     • Article 8 - common law wife non-compellable

4. S.80 (2) PACE

   • Carves out situations where spouses can be compelled to give evidence
     • Subject to spouse not also being accused, can be compellable to give evidence on behalf of that person

5. Dennis

   • Preferable to abandon attempts at compromise and adopt a general rule for all cases

6. Creighton

   • Proper balancing of considerations more likely to be achieved when made in light of facts of the original case

7. Roberts and Zuckerman

   • Even if spousal privilege saves marital harmony, why is that good enough reason to reduce public protection and allow the guilty to escape?

8. Waiving the spousal exemption

   • Up to spouse when they want to waive the general spouse exemption and elect to give evidence on behalf of spouse/against spouse
     • Blanket waive
     • R v Pitt
       • Whether/not wife knew she had a right to give evidence. gave inconsistent answers. Judge should not have allowed testimony to happen
   • Choo - doubts today over whether marriage holds same sentiment as before and ought to

9. Former spouses

   • S.80(5) and 5(a) - no longer married: compellable to give evidence as if that person and accused had never been married