The Compellability Rule in England and Wales: Support for the Spouse of the Defendant
| Author | Shamini K. Ragavan |
| Published date | 01 August 2013 |
| Date | 01 August 2013 |
| DOI | http://doi.org/10.1350/jcla.2013.77.4.855 |
| Subject Matter | Article |
The Compellability Rule in
England and Wales: Support for
the Spouse of the Defendant
Shamini K. Ragavan*
Abstract
Spouses, for a variety of reasons, struggle to give evidence
against their spouse in criminal proceedings. A woman’s willingness to
testify against her spouse or civil partner is not based on the compellability
provisions in PACE, but a personal choice of whether she is prepared to
testify against her spouse. To assist her, she (as victim and witness) must be
adequately supported (emotionally or psychologically) so that she be-
comes a resilient participant of the criminal justice system and thus
provides best evidence in court. A collective and coordinated effort of
practitioners, police, support agencies, including the judiciary is essential
and there is a need for them to be aware of the special needs of different
types of vulnerable witnesses, different forms of support, therapies and
counselling strategies available in their decision-making. This article will
draw upon findings of a pilot research study undertaken in 2009 to
examine the issue of support for victims and witnesses.
Keywords
Spouses; Victims and witnesses; Compellability;
Support
The compellability rule in England and Wales
The Police and Criminal Evidence Act 1984, s. 80(3) provides for the
compellability of an accused’s spouse or civil partner for the prosecution
in limited circumstances if the defendant is charged with a ‘specified
offence’. These are very limited and include an assault against the
spouse or civil partner or against a person under the age of 16, a sexual
offence against a person under 16 or aiding and abetting or any of these
offences.
True reasons for the exemption of spouses
A spouse may be reluctant to testify for a myriad of complex and often
logical reasons, including, but not limited to, the following: the possibil-
ity of reconciling with her spouse at a later stage, her giving evidence
* Lecturer, Newcastle Law School, Newcastle University; e-mail:
shamini.ragavan@ncl.ac.uk. Thanks are due to Richard Collier, Ian Dawson, Jenny
Johnstone and Ashley Wilton for comments on earlier drafts.
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The Journal of Criminal Law (2013) 77 JCL 310–324
doi:10.1350/jcla.2013.77.4.855
The Compellability Rule in England and Wales
may put their marriage at risk;1 fear of retaliation from the defendant
(especially in domestic violence cases2); threats to financial security;3
concern for the welfare of the children;4 pressure emerging from family
members not to testify; cultural or religious mores that would condemn
her for testifying against her spouse, resulting in alienation from her
family;5 not realising that a crime has been committed to her as she has
been subjected to abuse over a long period of time (domestic violence
cases); concerns of being alone and incompetent; sometimes, question-
ing her own judgement of what had happened, love for the defendant
and sometimes intimidation by the criminal trial process or lack of
understanding thereof that could lead to secondary victimisation.6
Based on these reasons, Lord Edmund Davies in Hoskyn argued that
there would be less harm to the sanctity of marriage when the law
coerced the wife to testify instead of leaving it to her to decide since the
purpose of a criminal trial is to protect those who for one reason or
another do not themselves seek that protection.7 The concern here is
that whether or not there is law enforcing compellability, the spouse will
1 In Hoskyn v Metropolitan Police Commissioners [1979] AC 474 at 488, Lord Wilberforce
stated the ‘identity of the interest between husband and wife and because to allow
her to give evidence would give rise to discord and to perjury and would be, to
ordinary people, repugnant . . .’, and see per Lord Salmon at 495. See also
S. Edwards, ‘Compelling a Reluctant Spouse’ (1989) 139 NLJ 691.
2 A. Cretney and G. Davis, ‘Prosecuting Domestic Assault: Victim Failing Courts, or
Courts Failing Victims?’ (1997) 36 Howard Journal 146 at 155; A. Sanders and
C. Hoyle, ‘Police Response to Domestic Violence: From Victim Choice to Victim
Empowerment’ (2000) 40 British Journal of Criminology 14.
3 M. E. Schneider, Battered Women and Feminist Lawmaking (Yale University Press: New
Haven, 2000) 43.
4 Ibid.
5 N. A. Jackson and G. C. Oates (eds), Violence in Intimate Relationships: Examining
Sociological and Psychological Issues (Butterworth-Heinemann: Boston, 1998) 233–4.
6 M. Burton, R. Evans and A. Sanders, Are Special Measures for Vulnerable and
Intimidated Witnesses Working? Evidence from the Criminal Justice Agencies, Home Office
Online Report 01/06 (Home Office: London, 2006); J. Doak, Victims’ Rights, Human
Rights and Criminal Justice: Reconceiving the Role of Third Parties (Hart Publishing:
Oxford and Portland, 2008) 325.
7 Hoskyn v Metropolitan Police Commissioners [1979] AC 474 at 499–508. Many
academics have argued in similar terms: D. Ormerod, ‘Witnesses: Compellability—
Spouse as the Witness for the Prosecution’ [2008] Crim LR 823 at 825; I. Dennis,
The Law of Evidence, 2nd edn (Sweet & Maxwell: London, 2002) 450: ‘. . . it might
be preferable to abandon attempts at compromise and to adopt a general rule that a
spouse should be a compellable witness in all cases’; P. Roberts and A. Zuckerman,
Criminal Evidence, 2nd edn (Oxford University Press: Oxford, 2010) 312–17;
Wigmore, Evidence, vol. VIII, 3rd edn (1940) 232; R v BA [2013] Crim LR 168,
commentary by L. Hoyano who argues (at 173) that complete abolition is the only
principled solution. See also S. Horley who, speaking before the Select Committee
on Domestic Violence on behalf of Refuge (HACDV 1993, (2), p. 126, para. 2), stated
that we must treat domestic violence as a crime and not a civil case, and this
treatment will then decrease the violence. In the USA, see E. Chiu, ‘Confronting
the Agency in Battered Mothers’ 4 S Cal L Rev 1223 at 1231 (2001); V. N. Ciraco,
‘Fighting Domestic Violence with Mandatory Arrest, Are We Winning?: An Analysis
in New Jersey’ 22 Women’s Rights Law Reporter 169 at 170 (2001); E. L. Han,
‘Mandatory Arrest and No-Drop Policies: Victim Empowerment in Domestic
Violence Cases’ 23 Boston College Third World Law Journal 159 (2003), considering
‘no-drop prosecution’ policies, which force the victim to testify, and also
‘mandatory arrests’, where police are not given any discretion, but are required to
arrest in all cases where officers have probable cause to believe that an act of
domestic violence has occurred.
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The Journal of Criminal Law
still refuse to testify or withdraw her allegation—her vulnerability and
powerlessness, fear and intimidation influences her decision.8
How can the process be made easier for the testifying
spouse whilst ensuring the criminal justice process meets
its objective in ensuring best evidence is achieved in a
criminal trial?
Support, whether therapeutic or general support ranging from counsel-
ling to providing of information and advice, would ensure that the rights
of witnesses are strengthened, enhance the quality of the investigation
process and ensure best evidence is achieved in court through the
testimony of important primary witnesses.9 The support provided to the
spouse would ensure that she has thoroughly understood the con-
sequence and implications of testifying in court and the need to main-
tain her commitment throughout the proceedings whilst easing her
burden throughout the ordeal. The value of this type of support for the
spouse would potentially reduce the number of cases discontinued,
withdrawn or discharged, as the witness would be more confident about
going to trial and testifying and being cross-examined on issues which
might be difficult for her in terms of what she has experienced.10
Support could include anything from information and advice, differ-
ent counselling strategies and therapies,11 emotional and psychological
support, practical assistance (housing), therapeutic support or facilitat-
ing the spouse in the process of testifying in a criminal trial. More
specifically the following types of support have been used for victims of
serious crimes in England and Wales: cognitive behavioural therapy
(CBT),12 psychotherapy,13 post-traumatic stress disorder therapy
8 S. Edwards and A. Halpern, ‘Protection for the Victim of Domestic Violence: Time
for Radical Revision?’ (1992) Journal of Social Welfare and Family Law 2. Edwards
and Halpern argue that the ‘placing of a choice in the hands of a woman herself is
almost an act of legal cruelty’. See R v Thompson (1977) 64 Cr App R 97, where the
victim was subjected to intimidation by the judge, but refused to answer questions.
See also A. Cretney and G. Davis, ‘The Significance of Compellability in the
Prosecution of Domestic Assault’ (1997) 37 British Journal of Criminology 75 at 76,
which took into account of four considerations that contribute to the struggle faced
by domestic violence victim to testify in court.
9 Ministry of Justice, Achieving Best Evidence: Guidance on Interviewing victims and
witnesses, and Guidance on using Special Measures, March 2011, available at http://www.
cps.gov.uk/publications/docs/best_evidence_in_criminal_proceedings.pdf, accessed 10 June
2013.
10 See Edwards, above n. 1.
11 Department of Health, Treatment Choice in Psychological Therapies and Counselling:
Evidence Based Clinical Practice Guideline, 19 February 2001, available at http://www.
dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_
4007323, accessed 10 June 2013.
12 CBT is a highly effective,...
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