Crown Court
| DOI | 10.1177/002201838605000202 |
| Published date | 01 May 1986 |
| Date | 01 May 1986 |
| Subject Matter | Article |
CROWN
COURT
EVIDENCE OF EX-WIFE AGAINST
FORMER
HUSBAND
R.
v.Ash
The
common
law position of a wife whose evidence it is sought to
adduce
at
the
criminal trial of
her
husband has, of course,
been
much
altered
by
statute
and
the
relevant
statutes
have
been
much
embroidered
on by
the
courts.
It
is
important
to
remember
that
even
at
common
law
there
is no general rule of inadmissibility of
communications
between
husband
and
wife, even while
the
marriage is subsisting: see Rumping v. D.P.P. [1964]
A.C.
814.
In R. v.
Ash
(1985) 81
Cr.App.R.
294, however,
the
rulings
which
Hobhouse
J. was called
upon
to give were
concerned,
not
with a wife,
but
with an ex-wife.
The
questions raised related to the
competence
or incompetence of
the
ex-wife,
and
raised no
problem
of
privilege of compellability, for in Shenton v. Tyler [1939] Ch. 620,
it was held that (i)
after
the
dissolution of
the
marriage no question
of compellability arises, since
the
ex-wife is always compellable
and
has no right to refuse to answer questions,
and
(ii) she has no
privilege to decline to answer questions relating to matrimonial
communications, for
that
privilege ceases to exist when
the
marriage
comes
to an end.
The
trial in R. v.
Ash
concerned
six
defendants
who
appeared
jointly
charged
on
one
count
of perverting
the
course of public
justice.
One
defendant,
Ash,
who
had
earlier
been
made
bankrupt
(apparently
in a false
name)
married. He bought a
property
and
passed it to his
then
wife by
deed
of gift.
After
the
marriage was
dissolved,
the
property
came
into the
hands
of certain companies
and
Chancery
proceedings
took
place
between
the
companies
and
the
trustee
in bankruptcy.
It
was in connection with these
transactions
and
proceedings
that
the
alleged conspiracy
took
place. As
the
offence did not
come
within
the
terms
of section 30 of
the
Theft
Act
1968,
the
Crown
was
content
to call
the
ex-wife to give
evidence of
matters
which
had
arisen exclusively after
her
divorce
from
the
defendant
in question. Thus, when she was called, in
102
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